Wilbur v. C.I.A.

• Decision Date: 08 April 2003
• Docket Number: No. CIV.A.01-0458 RMC.,CIV.A.01-0458 RMC.
• Parties: Robert WILBUR, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

273 F.Supp.2d 119

Robert WILBUR, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

No. CIV.A.01-0458 RMC.

United States District Court, District of Columbia.

April 8, 2003.

COPYRIGHT MATERIAL OMITTED

Robert Wilbur, Ringoes, NJ, pro se.

Wyneva Johnson, U.S. Attorney's Office, Washington, DC, for C.I.A.

MEMORANDUM OPINION

COLLYER, District Judge.

Robert Wilbur has been trying, since at least 1994, to use official government channels to obtain copies of records concerning himself that he is confident are held by the Central Intelligence Agency ("CIA"). The CIA has searched its records and identified only one document concerning Mr. Wilbur. Because he is dissatisfied with this result, Mr. Wilbur has brought suit here, pro se, to force a broader search. Pending before the Court is the CIA's Motion to Dismiss or, Alternatively, for Summary Judgment based on the adequacy of its search for records. For the reasons set forth below, the Court will grant the CIA's Motion for Summary Judgment.

I. BACKGROUND

Mr. Wilbur served in the United States Navy during World War II and until December 1, 1945.¹ Upon his release, he enrolled at the University of Chicago and remained there from January 1946 until May 1947, when he transferred to Lafayette College. He asserts that several of his classmates at the University of Chicago were actively recruiting for the Office of Strategic Services, a predecessor to the CIA, and that "[a]n adversarial report was turned in in retaliation for [his] refusal" to join. Compl. at 1. While he had been assured that his admittance to Lafayette College would be easy, in fact there was resistance when he interviewed with the Lafayette Admissions Committee. Just prior to his graduation, one of the members of that committee explained that the problem had been due to the fact that "there was something derogatory on my record with which he did not agree because it was not supported by anything concrete." Id. at 2.

Mr. Wilbur began his quest by asking the CIA for information in 1976 or 1977. In response, the Information and Privacy Coordinator for the CIA sent "the only document which we have pertaining to [Mr. Wilbur, which] is a photocopy of an envelope and letter, date 11 July 1961, from Robert O. Wilbur to Nikita S. Khrushchev, Chairman of the Council of Ministers, The Kremlin, Moscow, USSR." Exhibit to Compl. In his Complaint, Mr. Wilbur asserts that this letter was "stolen out of the United States Mails under the illegal government programs designated by acronyms `HT-LINGUAL' and `HUNTER[.]'" Compl. at 2.

More recently, in February 1994, Mr. Wilbur sought to submit a request for documents to the CIA under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"). Once it received the appropriate privacy waiver forms and certification of identity, the CIA accepted the request by letter dated May 13, 1994. The search for records concerning Mr. Wilbur focused on two CIA Directorates that were determined to be most likely to have responsive records, the Directorate of Operations ("DO") and the Directorate of Administration ("DA"). "The DO is the CIA component responsible for the clandestine collection of foreign intelligence information from human sources" and its records "contain[] information on persons who are of foreign intelligence or counterintelligence interest to the CIA ...." Declaration of Kathryn I. Dyer ¶ 12 ("Dyer Decl."). The search used Mr. Wilbur's first and last names and included a cross-reference to his date of birth. No responsive records were located. The DA is responsible for the CIA's administrative matters and "maintains records on all current and former employees of the CIA, whether employed in a contract or staff capacity, as well as other individuals for whom security processing or evaluation was required." Id. ¶ 13. Using Mr. Wilbur's first and last names and birth date, the DA located no responsive records. Id. The CIA advised Mr. Wilbur on June 28, 1994, that it was unable to identify any information or records filed under his name. Its letter advised Mr. Wilbur of his appeal rights.

Mr. Wilbur did not submit an appeal until January 4, 1999. Nonetheless, the CIA advised him that his request for an appeal had been received and accepted for consideration. By letter dated September 14, 2000, the CIA responded to the appeal with the information that the appropriate members of the Agency Release Panel, the Information Review Officers for the Director of Central Intelligence area, the DO, and the DA had advised that no documents were located despite their searches. The Agency Release Panel thus affirmed the earlier determination that there were no responsive documents and advised Mr. Wilbur of his right to seek judicial review.

Mr. Wilbur filed the instant Complaint on February 28, 2001. He seeks to know the accusation and accuser against him at Lafayette College, why his name was allegedly placed on a watch list, and the bases for CIA review of his mail. The CIA filed its Motion to Dismiss or, Alternatively, for Summary Judgment on April 13, 2001. Mr. Wilbur filed his Opposition on May 2, 2001, and the CIA filed its Reply on May 7, 2001. Thereafter, on May 31, 2001, Mr. Wilbur filed an Answer to the CIA's Reply, to which the CIA filed an Opposition on July 23, 2001. Being fully briefed on the issues, the Court is ready to decide this matter.

II. LEGAL STANDARDS

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proving by a preponderance of the evidence that a court has subject matter jurisdiction to hear a case. See Jones v. Exec. Office of President, 167 F.Supp.2d 10, 13 (D.D.C.2001). In reviewing a motion to dismiss for lack of jurisdiction, a court must accept as true all of the factual allegations set forth in the complaint; however, such allegations "`will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C.2001) (quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1350). The Court may consider matters outside the pleadings. See Lipsman v. Sec'y of the Army, 257 F.Supp.2d 3, 6 (D.D.C.2003).

A court may grant a motion for summary judgment when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment will not lie "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the moving party bears the burden of showing the absence of any genuine issue of material fact, "a party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Id. (quoting First Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (set of internal quotation marks omitted).

III. ANALYSIS

A. Dismissal Under Rule 12(b)(1)

The CIA makes two connected arguments in its motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure: (1) Mr. Wilbur failed to file his Complaint before the applicable statute of limitations expired, and (2) he failed to exhaust his administrative remedies properly. Taking the last point first, it is clear that exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA. See Oglesby v. Dep't of the Army, 920 F.2d 57, 61-64 (D.C.Cir.1990). This means that a requester under FOIA must file an administrative appeal within the time limit specified in an agency's FOIA regulations or face dismissal of any lawsuit complaining about the agency's response. See id. at 65 n. 9. If the requester did not timely appeal through the agency's internal processes, a court is deprived of subject-matter jurisdiction to review any lawsuit and must dismiss. See Kessler v. United States, 899 F.Supp. 644, 645 (D.D.C.1995).

The FOIA regulations of the CIA require an administrative appeal within forty-five days of the agency's initial decision on a FOIA request. See 32 C.F.R. § 1900. The CIA's initial determination here was dated June 28, 1994, and Mr. Wilbur's administrative appeal was dated January 4, 1999, more than four years later. Thus, his appeal was late — as if it were never filed at all — and he can be deemed to have failed to exhaust his administrative appeal rights.

The CIA also argues that the applicable statute of limitations for FOIA actions is six years under 28 U.S.C. § 2401(a). See Spannaus v. Dep't of Justice, 824 F.2d 52 (D.C.Cir.1987). Measuring the time since its June 1994 final response to Mr. Wilbur's FOIA request, and even granting additional time for the administrative process, the CIA argues that this lawsuit, filed on February 28, 2001, was untimely.

Mr. Wilbur explains that he sought legal counsel for many years prior to 1976 and, between 1976 and 1998, that he had been represented by four different attorneys, each of whom withdrew from the representation for unstated reasons. He argues that he "has no power of control over other attorneys, and thus over TIMELINESS." Opposition to Defendant's Motion to Dismiss and/or Summary Judgment at 3 ("Opposition") (emphasis in original).

The Court finds that Mr. Wilbur's explanation is insufficient to make this Complaint timely under the applicable regulations and case law. Recognizing that he is now proceeding pro se without the benefit of counsel, and therefore is entitled to a certain leeway with court rules and procedures, it is nonetheless clear that he had counsel at various times at least up until 1998. His administrative appeal of the CIA's June 1994 letter was due in 1994....