United States District Court, E.D. Arkansas, Western Division
JAMES E. WHITNEY ADC #163817 PLAINTIFF
UNITED STATES DEPARTMENT OF JUSTICE DEFENDANT
Marshall Jr. United States District Judge.
Court previously converted the Department's motion to
dismiss into one for summary judgment. No. 8 &
12. The Department has since supplemented its motion;
and Whitney has submitted a cross-motion for summary
judgment. No. 13 &21.
First, Whitney's motion. The basis for Whitney's
summary-judgment argument - and for his lawsuit more broadly
-is his belief that the Department failed to respond to his
FOIA request within the twenty days required by statute.
No. 14 at 3-4; 5 U.S.C. § 552(a)(6)(A). Whitney
says he placed his request in the prison mail on 17 March
2017. No. 2 at 2. He argues that, by operation of
the prison mailbox rule, his request was therefore deemed
filed on March 17th as well. Ns 14 at 3. But Whitney
is mistaken. The statute requires an agency to respond within
twenty days of receiving a request. 5 U.S.C. §
552(a)(6)(A). And courts have declined to apply the prison
mailbox rule in cases where a statute bases time limits on
the date of receipt rather than the date of filing. E.g.,
Longenette v. Krusing, 322 F.3d 758, 764 (3d Cir. 2003).
The Department responded on the sixteenth day after it got
Whitney's letter. That response was timely. Whitney's
motion for summary judgment, No. 13, is therefore
Next, the Department's motion. It first argues that this
Court lacks subject matter jurisdiction because Whitney
failed to properly exhaust his administrative remedies.
No. 9 at 3-7. As the Department acknowledges, the
Circuits divide on whether exhaustion is jurisdictional in
FOIA cases; and the Eighth Circuit hasn't taken a
position. No. 9 at 3-4. But a majority of the
Circuits to consider the question have held that exhaustion
is a prudential consideration, not a jurisdictional
prerequisite. Hull v. Internal Revenue Service, United
States Department of the Treasury, 656 F.3d 1174,
1181-82 (10th Cir. 2011) (collecting cases). Judge
Eisele's opinion to the contrary in Lilienthal
is thorough and well-reasoned. Lilienthal v. Parks,
574 F.Supp. 14 (E.D. Ark. 1983). But the Supreme Court has
since decided several cases that clarify and narrow what kind
of issue is truly jurisdictional. E.g., Henderson v.
Shinseki, 562 U.S. 428 (2011); Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154 (2010); Arbaugh v. Y &
H Corporation, 546 U.S. 500 (2006). In light of the more
recent precedent, this Court is not convinced that exhaustion
is a jurisdictional prerequisite in FOIA cases. So subject
matter jurisdiction over Whitney's case exists.
Department argues in the alternative that Whitney's
complaint must be dismissed because he failed to submit a
proper FOIA request. The Department says first that
Whitney's request was deficient because he failed to
provide a notarized example of his signature or a completed
Certification of Identity form. No 9 at 6. Whitney
responds that the governing regulation allows for
verification by declaration made under penalty of perjury;
and it specifically states that no particular form is
required. 28 C.F.R. § 16.41(d). Whitney is right. His
request was not deficient on this score.
Department's other basis for rejecting Whitney's
request, though, fares better. The regulation required
Whitney to describe the records he sought "in enough
detail to enable Department personnel to locate the system of
records containing them with a reasonable amount of
effort." 28 C.F.R. § 16.41(b). As the Department
notes, Whitney's request didn't identify which United
States Attorney's office or offices he believed had the
requested records. No. 9 at 5-6. He gave a list of
case numbers, which is in the margin.[*] This list has a lot of
information, but the numbers don't appear to be federal
case numbers, and the list doesn't identify the districts
where the cases were handled. This is not a situation where
the request, though imperfect in form, allows a clear and
easy inference that the records are in a particular place or
places. The Court agrees that it would be unreasonably
burdensome in these circumstances to require the Department
to locate the requested records without more specifics.
American Federation of Government Employees,
Local 2782 v. United States Department of
Commerce, 907 F.2d 203, 208-09 (D.C. Cir. 1990).
Because Whitney didn't submit a proper request under the
FOIA, he didn't trigger the Department's disclosure
obligations and can't prevail on his FOIA claim. 5 U.S.C.
§ 552(a)(3)(A); Lilienthal, 574 F.Supp. at
17-18. His complaint will therefore be dismissed without
motion for summary judgment, No. 13, denied. The
Department of Justice's converted and supplemented
motion, No. 8 & 21, is granted. Whitney's
complaint will be dismissed without prejudice.
"Case Nos. 93-744-FH, MI700025J, 1995-07-10;
93-036082-FH, MI610015J, 1995-10-13; 94-10382-SM, MI450015J,
1994-10-27; 94-778-FH, MI450075J, 1995-06-26; 00-044336-FC,
MI610015J, 2000-08-15; CR-2013-912, AR 720000, 2016-05-12;
and any others ...