THOMAS D. CLARK, )
)
Plaintiff, ) Case No. 1:99cv 433
)
v. ) Honorable David W. McKeague
)
NATIONAL SECURITY AGENCY, )
) MEMORANDUM OPINION
Defendant. )
______________________________)
This is a civil action brought under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, in which plaintiff
seeks from the National Security Agency records concerning him. Plaintiff's
voluminous complaint and exhibits allege
that the federal government has subjected him to mind-control
experimentation by means of microwave radiation. After
the National Security Agency (NSA) responded to plaintiff's FOIA request
with a letter claiming that none of the
requested documents exists, plaintiff initiated this civil action. The
matter is now before the court on defendant's motion
to dismiss, FED. R. CIV. P. 12(b)(6), on the ground that plaintiff failed
to exhaust his available administrative remedies.
The facts necessary for resolution of the pending motion appear in
plaintiff's complaint and attachments, public
records and letter decisions of governmental agencies, all of which are
appropriately considered in ruling on the motion
to dismiss. See Jackson v. City of Columbus, No. 98-3969, _ F.3d _, 1999 WL
781823, at * 2-3 (6th Cir. Sept. 30, 1999).
On May 4, 1999, plaintiff Thomas Daniel Clark requested copies of records
concerning himself,
specifically as related to surveillance, espionage, national security,
human radiation, experimentation, extra-terrestrial
life, and mind control, among other subjects. (Complaint, Ex. A). On June
8, 1999, the NSA responded to plaintiff's
FOIA request, asserting that NSA was unable to locate any responsive
records. The letter (attached as Exhibit B to
defendant's motion and attached as Exhibit B to the Complaint) outlined the
appeal process, advising plaintiff that an
appeal must be taken to the "NSA/CSS FOIA/PA Appeal Authority" and must be
postmarked no later than 60 calendar
days after the date of the denial letter. The denial letter also provided
the address to which such appeals should be
directed. A diligent search of NSA records disclosed that plaintiff did not
file an appeal within the 60-day period.
Plaintiff's complaint does not allege that he exhausted his available
administrative remedies. Plaintiff's response to
defendant's motion (docket # 9) states that plaintiff did not exhaust his
available remedies because he did not believe that
the NSA was a "reliable, expedient, and fair source of appeal."
Plaintiff's response attempts to rely upon a letter dated February 24,
1999, in which he was advised of his legal
right "to seek judicial review of this determination in a United States
District Court." The letter of February 24, however,
is not from the NSA. The letter is on the stationary of the Central
Intelligence Agency, and recites that it is in response to
plaintiff's request to that agency submitted on March 6, 1998. Plainly, the
letter upon which plaintiff now relies was sent
by a different agency and related to a different FOIA request.
Discussion
Exhaustion of administrative remedies is generally required before
filing suit in federal court, so that the agency
has an opportunity to exercise its discretion and to make a factual
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record to support its decision. See McKart v. United States, 395 U.S. 185,
194 (1969). FOIA specifically provides for an
administrative appeal process following an agency's initial denial of a
FOIA request. 5 U.S.C. § 552(a)(6)(A)(ii). The
federal courts have consistently held that this provision of FOIA requires
exhaustion of any available appeal process
before a party may seek relief in the federal court. See, e.g., Dettmann v.
United States Dep't of Justice, 802 F.2d 1472,
1477 (D.C. Cir. 1986).
The NSA has promulgated regulations implementing the administrative
appeal provisions of FOIA. These
regulations provide that any person denied access to records may, within
sixty days after notification of that denial, file
an appeal to the Freedom of Information Act Appeals Authority of the NSA.
32 C.F.R. § 299.5. The NSA's denial letter
in the present case informed plaintiff of his right to an administrative
appeal and instructed him as to how to perfect that
appeal. Plaintiff does not allege that he pursued an administrative appeal,
and the records of the agency affirmatively
demonstrate that he did not do so. Plaintiff's argument in his responsive
brief that the NSA is essentially incompetent to
perform a proper search is not a recognized exception to the exhaustion
requirement. Plaintiff is not free to bypass
administrative procedures on the basis of his own subjective beliefs.
Where, as here, a requester receives an adverse determination from an
agency, he must pursue the administrative
appeal process before bringing a civil action in federal court. See Oglesby
v. United States Dep't of Army, 920 F.2d 57,
61-62 (D.C. Cir. 1990). Where the requester ignores an available
administrative appeal and proceeds directly to district
court, the district court action must be dismissed for failure to exhaust
administrative remedies. Id. at 64; see Taylor v.
Appleton, 30 F.3d 1365, 1367-68 (11th Cir. 1994). Moreover, when the time
period within which
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the requester should have filed his administrative appeal has long expired,
the dismissal should be with prejudice. See
Kay v. FCC, 884 F. Supp. 1, 3 (D.D.C. 1995).
For the foregoing reasons, defendant's motion will be granted and this
matter will be dismissed with prejudice for
failure to exhaust administrative remedies.
Dated: November 3, 1999
David W. McKeague
United States District Judge
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UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
___________
THOMAS D. CLARK, )
)
Plaintiff, ) Case No. 1:99cv 433
)
v. ) Honorable David W. McKeague
)
NATIONAL SECURITY AGENCY, )
) JUDGMENT
Defendant. )
_______________________________________)
In accordance with the memorandum opinion filed this date:
IT IS ORDERED that defendant's motion to dismiss (docket # 7) be and
hereby is GRANTED.
IT IS FURTHER ORDERED that plaintiff's complaint be and hereby is
DISMISSED WITH PREJUDICE for
failure to exhaust administrative remedies.
Dated: November 3, 1999
David W. McKeague
United States District Judge
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