Haleem v. DOD, No. 23-1471, 2024 WL 230289 (D.D.C. Jan. 22, 2024) (Boasberg, J.)

Haleem v. DOD, No. 23-1471, 2024 WL 230289 (D.D.C. Jan. 22, 2024) (Boasberg, J.)

Re:  Request for records concerning decision to revoke plaintiff’s security clearance

Disposition:  Granting in part and denying in part defendants’ motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court finds that “[e]ach of the direct-recipient agencies – [the Defense Counterintelligence and Security Agency (“DCSA”)], [the Army Intelligence and Security Command (“INSCOM”)], and DOJ/FBI – and two of the referral-recipient agencies – FBI and [the Army Investigative Records Repository (“AIRR”)] – responded to [plaintiff’s] 2022 requests before he filed the instant lawsuit, thereby curing any prior failures to respond and defeating constructive exhaustion.”  “Plaintiff has thus not exhausted any challenge to those agencies’ responses to his 2022 requests.”
  
  “There is, however, one referral-recipient agency that continues to ignore Plaintiff to this day:  [the U.S. Army Reserve Command (“USARC”)].”  “Defendants, for their part, do not contest that USARC has ignored the referral.”  “Instead, they proclaim that ‘[plaintiff] pleads no plausible facts to support a finding that he raised his concerns [about the USARC referral] with INSCOM or with the [USARC], . . . nor did he contend that the referrals themselves were somehow an attempt to delay or shield records otherwise subject to disclosure.’”  “On this point, [plaintiff] has the superior argument.”  “The Government seems to think that upon learning that INSCOM was referring his request in part to USARC, [plaintiff] had to preemptively file an administrative appeal just in case USARC ghosted him down the road.”  “But FOIA does not demand that.”  “Rather, because USARC failed entirely to respond to [plaintiff], he is ‘deemed to have exhausted his administrative remedies.’”  “The fact that USARC received [plaintiff’s] FOIA request via a referral from INSCOM – rather than receiving it directly from [plaintiff] – does not alter that conclusion.”
  
  Additionally, the court relates that “[plaintiff] submitted five requests in 2023:  two to DCSA, one to INSCOM, and two to DOJ.”  “The Government asserts that because he framed those submissions as ‘appeals’ – by both including ‘appeal’ in the subject lines and/or address blocks and seeking, inter alia, reviews of previously asserted redactions – it was not clear that he intended them to be new records requests.”  “Plaintiff concedes that his March 14 letter to DCSA and one of his March 14 requests to DOJ were indeed untimely appeals, . . . but insists that his request to INSCOM and his other requests to DCSA and DOJ should have been treated as new ones.”  “As he sees it, the agencies should have ‘err[ed] on the side of caution and either request[ed] clarification from [him] or just treat[ed]’ the requests as new requests, ‘[c]onsidering [his] request[s] did not mention an assigned request number he was appealing or mention the word “appeal” anywhere other than the subject line.’”  The court finds that “Defendants, not [plaintiff], basically have it right.”  “The D.C. Circuit has held that ‘a submission must be reasonably clear that its sender intends it to be a new request.’”  “Here, Plaintiff’s 2023 submissions were plainly not ‘reasonably clear’ that [plaintiff] intended them to be new requests.”  “Considering his inclusion of the word ‘appeal’ in the subject line and/or ‘to’ line and, in some cases, his request for a review of previously asserted redactions, it was entirely reasonable for agency employees to construe the submissions as administrative appeals, not new requests.”
  
  “There is, however, one wrinkle that the Government seems to overlook:  unlike DCSA and DOJ, which reasonably construed [plaintiff’s] 2023 submissions as untimely appeals, INSCOM in fact treated his 2023 submission as a new request.”  “In other words, even if INSCOM was not required to construe the request that way, it did.”  “Indeed, it issued him a denial, explaining that the new request was a ‘duplicate’ of his 2022 request and outlining his appeal rights.”  “Not only that – [plaintiff] timely appealed that denial, and the Army adjudicated his appeal.”  “Given all of that, the Court cannot conclude that he failed to exhaust his claim based on INSCOM’s response to his 2023 request.”
   
• Procedural Requirements, Proper FOIA Requests:  “Before moving on, the Court notes one final Government basis for dismissal:  that Plaintiff’s requests did not ‘reasonably describe’ the records he was seeking, as the Privacy Act and FOIA require.”  “Here, the Court is not convinced that a reasonable agency would – or that any of the agencies at issue did – have any trouble determining which records [plaintiff] was requesting.”