HOOKER

v.

WILKIE

Before the Court is Defendants’ Motion to Dismiss Freedom of Information Act Complaint with attachments (Dkt. 8), Plaintiff’s response (Dkt. 14), Defendant’s Supplemental Exhibit (Dkt. 12), and Plaintiff’s response (Dkt. 17). After careful consideration of the allegations of the complaint (Dkt. 1), the submissions of the parties, and the applicable law, the Court grants the motion to dismiss.

BACKGROUND

This action is one of many brought by Plaintiff, proceeding pro se, in the federal district court for the Middle District of Florida.¹ Most of the prior cases

et seq., requests to the VA and other agencies. See Hooker v. Wilkie,⁸:18-cv- 2000-T-36JSS at Dkt. 43. Plaintiff sought documents relating to the VA’s authority to hire the positions for which he had applied. Id. The subject of this action pertains to only the FOIA requests and the agencies’ responses.

In March 2018, Plaintiff was granted leave to file a civil rights lawsuit pertaining to the events of 2016 and 2017. 3 Hooker v. Hopkins,⁸:15-cv-750-T-

“created, opened, and closed” April 3, 2017; and²) a copy of OPM’s approval for that position. See Dkt. 1 at ¶¶ 7, 10, 12, 13, 17, 20, 28. The VA had initially responded to prior requests for these same documents, dating as far back as 2017,

by stating no records existed. See Dkt. 1 at ¶¶ 8–10; Dkt. 8-1 (VA “no records” response to his 2017 request); Dkt. 8-2 (VA “no records” response dated 11/8/2019, which directed the Office of Chief Human Capital Officer of the VA to conduct further search). In November 2019, and for the very first time, the Office of the Chief Human Capital Officer of the VA produced two documents:¹) a fourpage document from the VA to OPM seeking direct-hire authorization for positions including police officers; and²) a two-page letter from OPM approving the positions. Dkt. 1 at ¶¶ 8, 9; Dkt. 8-3. The four-page VA direct hire authorization request was received by OPM eight months after April 2017, and the two-page approval was dated January¹⁸, 2018. Dkt. 1 at 20. Counts I and II are premised on Plaintiff’s contention the two documents are

“fraudulent” and were created by the VA at the behest of an assistant United States attorney (“AUSA”).⁷ Count I alleges the VA committed fraud in November 2019

Plaintiff raised these same fraud allegations in the Employment Discrimination Action and now claims that he intends to use the denial of his latest agency appeal in that action.⁸ This lawsuit concerns only whether the agencies followed FOIA.9

STANDARD OF REVIEW

This Court applies the Twombly-Iqbal standard to determine whether the complaint states a plausible claim for relief.¹⁰ The non-conclusory facts alleged in the complaint are accepted as true, construing them in the light most favorable to the plaintiff. Hunt v. Aimco Props., L.P., 814 F. 3d 1213, 1221 (11th Cir. 2016).

“A document outside the four corners of the complaint may still be considered if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent Techs., Inc., 433 F. 3d 1337, 1340 n.3 (11th Cir. 2005) (citation omitted). Pro se pleadings, although liberally construed, must not be rewritten by the court to sustain an action. Campbell v. Air Jamaica Ltd., 760 F. 3d 1165, 1168–69 (11th Cir. 2014).

ANALYSIS

A person aggrieved by an administrative appeal from a FOIA response may file an action in federal district court.⁵ U.S.C. § 552(a)(4)(B). The district court has jurisdiction to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”11 Id. FOIA does not allow for an award of money damages. Lewis

236 (D.C. Cir. 2013) (citation omitted). Plaintiff’s request for damages is denied.12 In a FOIA action, the plaintiff must show an agency “has (1) improperly (2) withheld (3) agency records.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

142 (1989) (quotation and internal quotation marks omitted). The complainant must identify the document being withheld. Lopez v. United States, 656 F. App’x 957, 967 (11th Cir. 2016) (remanding to district court because complaint sufficiently alleged inadequate agency response). Mr. Lopez had described in his complaint a specific memorandum, which was missing from the agency production. Id., 656 F. App’x at 968 (“It did not appear that Lopez received the Warden’s memorandum in response to his FOIA request.”). Unlike Mr. Lopez, the

Plaintiff here neither seeks nor identifies a document, but rather desires a “no records” response from the VA. Dkt. 1 at ¶¶ 7–18.

individual employee of a federal agency.”). Although the VA is an agency, the remaining Defendant is more properly identified as the Department of Justice, as one of the contested responses issued from the EOUSA. See Dkt. 1-2 at 1–2. The Attorney General “AG” and any United States Attorney’s Office are not agencies under FOIA. See Del Rio v. FBI, No. 08- 21103-Civ-M, 2008 WL 11331745, at *1–2 (S.D. Fla. Oct. 21, 2008). 12 Plaintiff requests the same damages as those he sought in the Employment Discrimination lawsuit, ranging from $300,000 to $900,000. Dkt. 1 at 14. Count I concerning fraudulent agency action The complaint does not disclose that Plaintiff began sending FOIA requests in 2017. The complaint starts with the requests made in October 2019, which resulted in him receiving two documents for the first time. Dkt. 1 at ¶ 7. His October², 2019 FOIA request to OPM resulted in a “no records” response on

October 11, which Plaintiff did not appeal. Dkt. 1 at ¶ 11. His October 19, 2019 similar request to the VA took a different and circuitous route. Before discussing the paths of the 2019 FOIA requests, the Court notes Plaintiff’s intent is clear. He plans to use the two documents produced by the VA in late November 2019, together with a future, anticipated “no records exist” response, to prove the documents’ “fraudulent” nature. He asserts they were fraudulently created by individuals at the VA to cover up the VA’s failure to obtain direct hire authorization from the OPM for the police officer positions of April 3, 2017. He baldly accuses the AUSA of instructing the VA “to use the [the VA’s 4- page request for direct hire authority received by OPM in December 2017, and the 2-page letter from OPM dated January 24, 2018, approving the direct hire positions] to fraudulently claim that the VA received approval.” Dkt. 1 at ¶ 23. According to Plaintiff, the documents on their face prove they were “fraudulently” manufactured after the April 3, 2017 position.¹³ Dkt. 1 at ¶ 15 (document “proves that the VA provided a Fraudulent Response in VA FOIA No. 20-01289-F [the

2019 production]” because it shows the request to OPM was made eight months after the April 3 position was created by the VA.).14 The duplicate FOIA request that prompted response No. 20-01289-F was submitted October 31, 2019 to the VA. Dkt. 1 at ¶ 7. Adding more confusion to the chain of events, one section of the VA initially made a “no records” response to the October 31 request and, at the same time, referred the October 31 request to the Office of the Chief Human Capital Officer within the VA. Dkt. 8-2.15 The complaint is silent regarding whether he appealed this “no records” response, but the motion indicates Plaintiff did not appeal. Dkt. 8 at 6. It was the Office of the Chief Human Capital Officer with the VA that produced the two “fraudulent” documents in late 2019. On January¹⁶, 2020, Plaintiff appealed the “fraudulent” VA FOIA response No. 20-01289-F. Dkt. 1 at ¶ 12; Dkt. 1-2 at 2–4; Dkt. 8-4 (emailed notice of appeal). Although Plaintiff

Despite the pendency of the January¹⁶, 2020 VA and OPM appeals regarding the documents, Plaintiff continued, and continues, to make the same FOIA request, which has led to an entangled state of requests, emails, responses,

appeals, and final agency decisions, all with various numbers assigned. These actions resulted in a February¹³, 2020 production of the same two documents, this time from OPM. Dkt. 1 at ¶ 15. On March¹⁶, 2000, OPM responded to a “second” request by providing the same documents. Dkt. 1 at ¶ 16.16 On March

24, 2020, OPM responded to a third request with the following: Your FOIA request is denied because you have already made this same request in which OPM has already responded. On March¹⁷, 2020, OPM supplied you with the documents which you requested for Vacancy Announcement No. MY-FNC-1944457-BU-NC.

Dkt. 1 at ¶ 18. That same day, March 24, 2020, Plaintiff appealed the decision from OPM. Dkt. 1 at ¶ 19. He complains OPM’s response is “fraudulent” because he “should

2020, and this lawsuit ensued. Dkt. 1 at ¶ 20.17 Having synthesized the posture of each appeal, the Court determines the proper party Defendant in Count I is OPM because the March OPM appeal, not the January VA appeal, was final when this FOIA action was filed on June¹, 2020.

The January¹⁶, 2020 appeal to the VA was not decided until after this action was filed. See Dkt. 1, Count III; Dkt. 14. Plaintiff, therefore, did not exhaust his administrative remedies relative to the VA appeal.

In the event this order’s summation and recitation of relevant dates and actions may be questioned or flawed, the Court determines the complaint fails to

if not seeking, more “no records” responses, and he appeals when he does not receive same. Any other response he characterizes as fraudulent. A FOIA action cannot be used, or perhaps misused as the case here, as a discovery tool to gather evidence to be used in other lawsuits. See N.L.R.B. v. Robbins Tire & Rubber Co.,

437 U.S. 214, 242 (1978). This Court simply cannot order an agency under these circumstances to provide the specific response the requester wishes. For example, according to Plaintiff, he has now received a July¹⁰, 2020 “no records” response from the VA regarding a July⁵, 2020 FOIA request, which request is the same as all prior requests. Dkt. 14 at 12–14. The “no records” response is appealable, if Plaintiff so desires, through administrative procedures. Id. By his own allegations, however, Plaintiff obtained the precise response he wanted. Not only does the complaint fail to identify records not already produced, but Count I is moot as it no longer presents a case or controversy under FOIA. Count II pertaining to Department of Justice Count II against the Department of Justice also fails to state a claim under

FOIA. The complaint alleges Plaintiff sought to obtain the very same documents he received from the VA, but this time from the DOJ. FOIA obligations require agency records either belong to the agency, by creating or obtaining them, or be within its control. See Wolfe v. Dep’t of Health & Human Servs., 711 F. 2d 1077, 1079 (D.C. Cir. 1983) (defining agency record as either created or obtained by agency) (citation omitted); Burka v. U.S. Dep’t of Health & Human Servs., 87 F. 3d 508, 515 (D.D.C. 1996) (citing four factors to determine agency control). Plaintiff’s own allegations establish he is the one who initially copied an AUSA with the documents produced by the VA and OPM. Dkt. 1 at ¶¶ 21–25. He alleges nothing attributing those records to the Department of

Justice. Plaintiff may not use this FOIA action to prove the DOJ’s complicity an alleged fraud by “concealing” the records already produced by the VA. See Dkt. 1 at ¶ 34 (AUSA concealed fraudulent VA records “which should justify the reopening of the 2nd Amended Complaint under [No. 8:18-cv-2000-T-36JSS].”

Count II does not stand. Counts III and IV seeking to compel agency action Exhaustion of administrative remedies is a prerequisite to filing a FOIA action in the district court. See 5 U.S.C. § 552(a)(4)(B). Exhaustion under FOIA may occur in one of two ways: actual or constructive. Taylor v. Appleton, 20 F. 3d 1365, 1338 (11th Cir. 1994). “Actual exhaustion requires a party to appeal any adverse agency determination before filing suit.” Lopez v. United States, No. 5:18- cv-263-Oc-34PRL, 2020 WL 1492804, at *9 (M.D. Fla. Mar. 27, 2020), appeal docketed, No. 20-12738 (11th Cir. July 22, 2020) (citing Oglesby v. U.S. Dep’t of the Army, 920 F. 2d 57, 64-65 (D.C. Cir. 1990)). Constructive exhaustion occurs when an agency has not responded to a FOIA request or has not decided an appeal within the statutory time constraints.⁵ U.S.C. § 552(a)(6)(C); Lopez, 2020 WL 1492894, at *9. The various time limits for an agency to act are set forth in⁵

U.S.C. § 552(a)(6). FOIA permits a lawsuit in the district court to compel an agency response in the case of constructive exhaustion. Taylor, 30 F. 3d at 1368. Count III concerns the January¹⁶, 2020 appeal to the VA of the November

21, 2019 decision by the Office of the Chief Human Capitol Officer with the VA. Dkt. 1 at ¶ 31; Dkt. 1-2 at 2–4. Plaintiff alleges that as of May¹⁸, 2020, he had not received a decision on the appeal and the statutory time limit for doing so had passed. Dkt. 1 at ¶ 33. Plaintiff’s response discloses, however, that on July¹⁰,

2020, the VA timely responded to another, duplicate FOIA request made July⁵, 2020. Dkt. 14 at 12–14 (VA letter dated 7/10/2020). Although the request and decision both occurred after the filing of this lawsuit, the July¹⁰ letter, per its own terms, constitutes a decision on the appeal from the November 21, 2019 agency action producing the two “fraudulent” documents. The VA’s July¹⁰ decision is a “no records” response. Id. Plaintiff confirms in his response “the VA has now provided me with the No Records Response on July¹⁰, 2020 as it pertains to the November 21, 2019 Fraudulent FOIA Response.” Dkt. 14 at 7.18 Absent any agency action left to compel, this Court no longer has jurisdiction over the VA appeal. Count IV alleges on April¹³, 2020, Plaintiff appealed to the Department of Justice the decision of the Director of the EOUSA. Dkt. 1 at ¶ 34; Dkt. 1-2 at 1–2 (DOJ letter dated 4/13/2020). The complaint alleges that as of May¹⁸, some twenty-six working days later, Plaintiff had not received any decision on the appeal.19 Plaintiff’s response reveals that on June², 2020, the day after this FOIA action was filed, he received a decision on the DOJ appeal. Dkt. 14 at 10–11 (DOJ letter dated 6/2/2020). This Court does not have authority, nor did it ever in this FOIA action, to “inform the judge presiding over USDC Case No. 8:18-cv-2000- 36JSS of the fraud by AUSA.” See Dkt. 14 at 6. Counts III and IV are moot. Accordingly, the motion to dismiss (Dkt. 8) is granted without prejudice.

Should Plaintiff not replead and file an amended complaint within fourteen (14) days, this case will be closed.

WILLIAM F. iS

UNITED STATES DISTRICT JUDGE

Copies furnished to: Counsel of Record and unrepresented parties