Wattleton v. Berryhill

442 F.Supp.3d 223

David Earl WATTLETON, Plaintiff,

v.Nancy A. BERRYHILL, Defendant.

Civil Action No.: 19-1404 (BAH)

United States District Court, District of Columbia.

Signed March 3, 2020

David Earl Wattleton, Rochester, MN, pro se.

William J. Chang, U.S. Attorney's Office for the District of Columbia, Washington, DC, Joshua L. Rogers, U.S. Attorney's Office, Raleigh, NC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief United States District Judge

The plaintiff, David Earl Wattleton, proceeding pro se and in forma pauperis ("IFP"), filed this lawsuit under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552a, to compel a determination and disclosure of financial records, maintained by the Social Security Administration ("SSA").¹ SSA now seeks summary judgment. SSA Mot. for Summ. J. ("SSA Mot."), ECF No. 12; SSA Mem. Supp. Mot. for Summ. J. ("SSA Mem."), ECF No. 12-1. For the reasons discussed below, the motion for summary judgment is granted as to the plaintiff's FOIA claim, and the plaintiff's belated asserted claim, under the Privacy Act of 1974 ("Privacy Act"), 5 U.S.C. § 552a, which materialized during briefing, is dismissed without prejudice.

I. BACKGROUND

The plaintiff alleges that, in February 2019, he submitted a written FOIA request to SSA. Compl., ECF No. 1, at 2. He includes an exhibit, which he describes as a "true and correct copy of the request." Compl. at 2, 4 (Compl. Ex. A) ("February Request"). This single-page February Request is undated and unsigned. See February Request. The body of the document states that it "is a FOIA request pursuant to 5 U.S.C. § 552, for Form W-2 for taxable years 1986–1999, the amounts that [the plaintiff has] been paid by employer, and the taxes that have been withheld by employer." Id. The plaintiff alleges that SSA has refused to respond to this request and, in its failure to make a timely determination, is concomitantly improperly withholding documents. Compl. at 2.

In moving for summary judgment, SSA states that, upon notice of this lawsuit, it conducted searches on August 8 and August 13, 2019, finding no record of any FOIA request submitted by the plaintiff. SSA Mem. at 3; SSA Mem. Ex. A., Declaration of C.T. Monica Chyn, Division Director for the Office of Privacy & Disclosure in the SSA Office of General Counsel ("Chyn Decl.") ¶ 7, ECF No. 12-2; SSA Reply, Ex. A, Declaration of Mary Ann Zimmerman, Deputy Executive Director of the Office of Privacy & Disclosure in the SSA Office of General Counsel ("Zimmerman Decl.") ¶ 11, ECF No. 18–1 (averring that SSA has no record of the February Request or any other FOIA request from the plaintiff). The plaintiff asserts a genuine dispute of fact exists because he can "establish, beyond doubt, that [he] did mail his FOIA request to the Social Security Administration ..." and that "SSA received his FOIA request." Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 2, ECF No. 14. As proof, he attaches a responsive letter from SSA, dated August 9, 2019. Id. at 5 (Pl.'s Opp'n, Ex. A.) ("August Response"). This letter, however, is not responsive to the February Request, but instead is an agency response to a separate document request from the plaintiff to the SSA. Specifically, the August Response serves as a "response to [the plaintiff's] April 3, 2019 request for copies of Wage and Tax Statements (Form W-2) for 1986 through May 1999." Id. (emphasis added). The August Response requests supplemental information that was apparently missing from the plaintiff's April 3, 2019 request ("April Request"), including: his social security number, the exact name shown on his social security card, any potential different names shown on an applicable W-2, his complete mailing address and telephone number, the years requested, and the reason for the request.² According to the SSA, the plaintiff has not yet provided the supplemental information for the April Request that SSA requested in its August Response. SSA Reply in Supp. Mot. Summ. J. ("SSA Reply") at 2, ECF No. 17.

SSA acknowledges receipt of the April Request, but states that this request sought the plaintiff's own records without citing to FOIA. SSA Reply at 1; Zimmerman Decl. ¶ 7. Consequently, pursuant to its internal policy, see Program Operations Manual System ("POMS") GN 003340.001, SSA construed the April Request as a first-party access request under the Privacy Act. Reply at 1; Zimmerman Decl. at ¶ 8. SSA will not process a first-party request under FOIA "unless a request has already been denied under the [Privacy Act]," because such individuals are requesting their own records. Zimmerman Decl. at ¶¶ 7, 8 (citing POMS GN 03340.001 ). SSA also states that the April Request was processed under the Privacy Act because SSA "generally applies whichever law grants the requester greater access, regardless of which is cited, or even if no law is cited by the requester" and the Privacy Act grants greater access to first-party requesters. Id. ¶ 10 (citing POMS GN 003301.035).

II. STANDARD OF REVIEW

Exhaustion of remedies under FOIA is "a jurisprudential doctrine" that bars judicial review "if ‘the purposes of exhaustion’ and the ‘particular administrative scheme’ support such a bar." Hidalgo v. FBI , 344 F.3d 1256, 1258–59 (D.C. Cir. 2003) (citing Oglesby v. Dep't of Army , 920 F.2d 57, 61 (D.C. Cir. 1990) ). The majority of FOIA claims are appropriately decided on motions for summary judgment. Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). A court may grant summary judgment by relying on the information included in the agency's affidavits or declarations if they are "relatively detailed and non-conclusory," SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted).

Exhaustion under the Privacy Act, however, "is a jurisdictional threshold to challenging an agency determination." Kearns v. FAA , 312 F. Supp. 3d 97, 107 (D.D.C. 2018). In assessing a Privacy Act claim, a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13 (D.D.C. 2001). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Further, a court may consider documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005).

When, as here, an action is brought by a pro se plaintiff, a district court has an obligation "to consider his filings as a whole before dismissing a complaint," Schnitzler v. United States , 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ), because such complaints are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, a court need not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the court accept a plaintiff's legal conclusions. Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002).

III. DISCUSSION

The plaintiff's original complaint appeared to challenge only SSA's processing of his February Request, pursuant to the FOIA, but during the course of summary judgment briefing he also raised challenge to SSA's processing of another document request made in April 2019. For neither request has the plaintiff sought administrative review through appropriate channels within SSA. Thus, as discussed separately below, the February Request is evaluated as a FOIA claim, under Federal Rule of Civil Procedure 56, see Goldstein v. IRS , 279 F. Supp. 3d 170, 175–76 (D.D.C. 2017) ; see also Powell v. Social Sec. Admin. , No. 18-847, 2018 WL 4840356, at *2 (D.D.C. Oct. 4, 2018), and the April Request is reviewed as a Privacy Act claim, pursuant to Federal Rule of Civil Procedure 12(h)(3), Hidalgo , 344 F.3d at 1260.

A. FOIA Claim

Pursuant to FOIA, "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). This obligation, however, can only be triggered upon receipt of such a request. See Antonelli v. Fed. Bureau of Prisons , 591 F. Supp. 2d 15, 26 (D.D.C. 2008) (noting that "[a]n agency's disclosure obligations are not triggered ... until it has received a proper FOIA request in compliance with its published regulations").

Absent receipt of a FOIA request, an agency "has no reason to search or produce records and similarly has no basis to respond." Johnson v. United States , 239 F. Supp. 3d 38, 44–5 (D.D.C. 2017) (granting summary judgment where the plaintiff had not submitted a FOIA request) (quoting Carbe v. Bureau of Alcohol, Tobacco and Firearms , No. 03-CV-1658, 2004 WL 2051359 at *8 (D.D.C. Aug. 12, 2004) ).

Here, the plaintiff has failed to offer any objective evidence supporting his allegation that SSA actually received the February (FOIA) Request. SSA has submitted two sworn declarations attesting that, despite two searches, no record of the February Request, or any other FOIA request from the plaintiff, was found. See, generally , Chyn Decl., Zimmerman Decl. The purported copy of the February Request attached to the complaint, which is undated and unsigned, is insufficient to generate a genuine dispute of material fact regarding SSA's alleged receipt of the request. The plaintiff's reliance on the August Response is similarly ineffectual as the document is clearly responsive to a different document request. He does not attach, for example, "a certified-mail receipt or any other form of mailing that his missives reached their intended target. This is thus insufficient to create a dispute of material fact...