Fabian v. Drug Enforcement Administration

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RAFAEL FABIAN,
Plaintiff,
v.
DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.
: 	NO. 3:24-CV-01533
:
: 	(MEHALCHICK, D.J.)
:
: 	(CAMONI, M.J.)
:
:
:
REPORT AND RECOMMENDATION
Pending 	before 	the 	Court 	is 	Defendant 	Drug 	Enforcement
Administration’s (DEA) motion for summary judgment. Doc. 16. Plaintiff
Rafael 	Fabian 	opposed, 	and 	the 	DEA 	replied. 	Docs. 	21, 	23. 	The
undersigned respectfully recommends that the Court grant the DEA’s
motion 	for 	summary 	judgment 	because 	the 	Plaintiff 	has 	failed 	to
establish that he exhausted the administrative remedies required by
statute and regulation.
I. 	BACKGROUND
To begin with the undisputed facts: in 2022, the Plaintiff submitted
a Freedom of Information Act (FOIA) request to the DEA, seeking records
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and documents related to a DEA case file. Def.’s Statement of Material
Facts, Doc. 17 ¶ 1; Pl.’s Br., Doc. 21 at 2.1
More than a year and a half later, the DEA responded with an
initial denial letter, informing the Plaintiff that it would withhold all
records responsive to the FOIA request and invoking a specific exception.
See Doc. 17 ¶ 3, citing Doc.17-5 at 2; Doc. 21 at 2. Under 28 C.F.R. § 16.8,
the Plaintiff could have administratively appealed the DEA’s initial
denial to the DOJ Office of Information Policy (OIP). Doc. 17 ¶ 4; Doc. 21
at 2. Both parties agree that an appeal is necessary to satisfy the
exhaustion requirement.
The parties dispute only one fact: whether the Plaintiff filed an
administrative appeal of the denial of his Freedom of Information Act
(FOIA) request. Doc. 17 ¶ 5; Doc. 21 at 2. The DEA submits a sworn
declaration of Priscilla Jones, a supervisory administrative specialist in
the OIP, averring that there exists “no record of OIP receiving an
1 The Plaintiff, proceeding pro se, did not file a separate response to the
DEA’s 	statement 	of 	material 	facts, 	but 	chose 	instead 	to 	include 	a
“STATEMENT 	OF 	MATERIAL 	FACTS 	IN 	OPPOSITION” 	in 	his
opposition brief. See Pl.’s Br., Doc. 21 at 2. The Court should construe
Plaintiff’s filing broadly and accept his statement of facts in satisfaction
of the local rule.
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administrative appeal” from the Plaintiff regarding his FOIA request.
Doc. 17 ¶ 5, citing Jones Decl., Doc. 17-6 at 2. Conversely, the Plaintiff
submits a copy of an appeal letter which he contends was “sent via U.S.
mail” on December 27, 2023. Doc. 21 at 2, citing Appeal Letter, Doc. 21-1
at 1.
On September 10, 2024, the pro se Plaintiff filed a motion to proceed
in forma pauperis (Doc. 2) and the Complaint, asking the Court to “enjoin
the defendants from continuing to withhold records that were first sought
on Feb. 28, 2022.” Complaint, Doc. 1 ¶ 8. The Plaintiff further alleged
that “on December 27, 2023, he mailed . . . an appeal to the [OIP],” for
which “he has not received any response.” Id. ¶ 7.
The Court granted the Plaintiff’s IFP motion and the DEA was
served with the summons and complaint. Docs. 9, 15. As a first responsive
pleading, the DEA moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56. Doc. 16. The parties have fully briefed the
DEA’s motion, docs. 18, 21, 26, and it is now ripe for resolution.
II. 	LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as
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a matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” when “a
reasonable 	jury 	could 	return 	a 	verdict 	for 	the 	nonmoving 	party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
“material” only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.
2006), citing Anderson, 477 U.S. at 248. Disputes over irrelevant or
unnecessary facts will not preclude a grant of summary judgment.
Anderson, 477 U.S. at 248.
The moving party bears the burden of showing that no genuine
dispute exists such that summary judgment is warranted. See Celotex
Corp. 	v. 	Catrett, 	477 	U.S. 	317, 	322-23 	(1986). 	Once 	the 	movant
adequately supports its motion, the burden shifts to the nonmoving party
to 	“go 	beyond 	the 	pleadings 	and 	by 	her 	own 	affidavits, 	or 	by 	the
depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324.
“In considering a motion for summary judgment, a district court
may not make credibility determinations or engage in any weighing of
the evidence.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004), citing Anderson, 477 U.S. at 255. Rather, “[a]ll facts and inferences
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are construed in the light most favorable to the non-moving party.” Boyle
v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Credibility
determinations are “the province of the factfinder.” Big Apple BMW, Inc.
v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). The court's
role, at the summary judgment stage, is “to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. There can be “no
genuine issue as to any material fact,” however, if a party “fails to make
a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex, 477 U.S. at 322).
III. 	ANALYSIS
The parties dispute only whether the Plaintiff filed an appeal of the
denial of his FOIA request. Doc. 17 ¶ 5; Doc. 21 at 2. The DEA argues
that the Plaintiff has not filed an appeal, and, because filing an appeal is
required to exhaust the administrative remedies, has thus failed to
exhaust. Def.’s Br., Doc. 18 at 1. The Plaintiff argues that he has
submitted an appeal. Doc. 21 at 2.
The undersigned respectfully recommends the Court grant DEA’s
motion for summary judgment because the record establishes that the
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Plaintiff has not established that he filed an appeal under 28 C.F.R.
§ 16.8. In reaching this conclusion, the undersigned has considered (1)
the 	exhaustion 	requirement 	relevant 	to 	FOIA 	requests; 	(2) 	the
requirement for filing an administrative appeal; and (3) case law cited by
the parties.
A. 	Appealing 	the 	DEA’s 	initial 	FOIA 	determination—a
requirement to exhaust administrative remedies
“Generally, the law requires exhaustion of administrative remedies
before a plaintiff may seek relief in district court.” Biear v. Att’y Gen.
U.S., 905 F.3d 151, 156 n.14 (3d Cir. 2018), first citing McKart v. United
States, 395 U.S. 185, 193 (1969); then citing Oglesby v. U.S. Dep’t of Army,
920 F.2d 57, 61 (D.C. Cir. 1990); and then citing McDonnell v. United
States, 4 F.3d 1227, 1240 (3d Cir. 1993).
“In the context of FOIA, courts in the D.C. Circuit, which frequently
adjudicate issues arising under FOIA, have held that the ‘failure to
comply with an agency’s FOIA regulations is the equivalent of a failure
to exhaust,’ which subjects a case to dismissal.” Id. at 156 n.15, quoting
Elec. Priv. Info. Ctr. v. I.R.S., 261 F. Supp. 3d 1, 7 (D.D.C. 2017). Actual
exhaustion requires a FOIA requester to appeal any denials to the head
of an agency. See McDonnell, 4 F.3d at 1240, quoting Oglesby, 920 F.2d
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at 61. This exhaustion requirement exists because “[a]llowing a FOIA
requester to proceed immediately to court to challenge an agency’s initial
response would cut off the agency’s power to correct or rethink initial
misjudgments or errors.” Id. at 1241, quoting Oglesby, 920 F.2d at 64.
B. 	Determination of whether a requester has appealed
Two sources guide the Court to determine whether a requester has
in fact appealed: (1) the currently effective regulation; and (2) the
agency’s initial denial letter which sets out the requirements for filing an
appeal. See Doc. 17-5 at 3; 28 C.F.R. § 16.8; Biear, 905 F.3d at 156 n.15.
Although DEA argues that “a federal regulation required actual receipt
– not just mailing – of an appeal,” (Def.’s Reply Br., Doc. 23 at 2), both
sources require only that a requester postmarks the appeal within ninety
days 	of 	the 	date 	of 	the 	initial 	denial. 	Doc. 	17-5 	at 	3; 	§ 16.8(a).
Postmarking an appeal is different from having to prove that OIP has
actual receipt of his appeal.
1. 	The DEA relies on prior versions of the relevant federal
regulation.
The DEA relies on two cases, the holdings of which have been
superseded because they were based on regulations that have since been
amended. Doc. 23 at 6-8, first citing Conley v. Fed. Bureau of Prison, 714
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F. App’x 191, 194-95 (3d Cir. 2017); and then citing Fisher v. U.S. Dep’t
of Just., No. 7-2273, 2008 WL 8683024, at *4 (D.N.J. May 9, 2008). Both
cases are factually distinguishable from the instant case because the
prior versions of the regulations pertaining to appeals then in effect
explicitly required an appeal to be “received by the [OIP] . . . .” § 16.9(a)
(effective until May 4, 2015).
First, the DEA cites Conley to support its argument that the OIP
not having actual receipt of the appeal is dispositive. Doc. 23 at 7. Unlike
the instant case, however, the Conley court applied a previous version of
§ 16.9(a). See 714 F. App’x at 194 (emphasis in original) (“At the time
Conley submitted his appeal, 28 C.F.R. § 16.9(a) (2011) provided that an
appeal from an adverse FOIA decision of the FBI must be received by the
OIP within 60 days . . . .”). 	Moreover, the FBI in Conley only contested
the timeliness of the plaintiff’s appeal, not whether the appeal was
received in the first place. The issue here is not whether the Plaintiff was
late in filing his appeal. It is whether the Plaintiff filed an appeal at all
under the current regulation.
Second, the DEA cites to Fisher, arguing that the Plaintiff had the
burden to “come forward with evidence that the DEA had actual receipt.”
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Doc. 23 at 7. The Plaintiff is under no such burden under the version of
28 C.F.R. § 16.8 in effect when he filed his request. As with Conley, the
Fisher court applied a former version of the relevant regulation for filing
appeals, § 16.8(a), which required an appeal to be “received.” Fisher, 2008
WL 	8683024, 	at 	*4. 	The 	undersigned, 	therefore, 	finds 	both 	cases
inapplicable to the instant case.2
2. 	The Plaintiff failed to establish that he has appealed.
Under the presently operative 28 C.F.R. § 16.8, a FOIA requester
“must make the appeal in writing and to be considered timely it must be
2 The Plaintiff’s case citation is also unhelpful. See Doc. 21 at 4, citing
Hidalgo v. F.B.I., 344 F.3d 1256 (D.C. Cir. 2003) (arguing that courts
have “recognized that an agency’s failure to respond to a properly filed
appeal 	does 	not 	preclude 	judicial 	review 	where 	the 	plaintiff 	can
demonstrate that the appeal was actually submitted.”). That proposition
is undisputed. The Plaintiff’s problem is that he has failed to demonstrate
that he “actually submitted” the appeal. 	Moreover, Hidalgo goes a step
further in the DEA’s favor. See 344 F.3d at 1259. The court in Hidalgo
dismissed the plaintiff’s complaint for failure to exhaust administrative
remedies even though the plaintiff filed a timely appeal. Id. at 1259-60.
It reasoned that although “Hidalgo’s appeal may have been timely, . . . it
did 	not 	promote 	the 	purposes 	of 	the 	exhaustion 	doctrine,” 	because
“Hidalgo pursued it before the FBI acted on his request, the appeal could
not and did not place the substance of the FBI’s response before the OIP.
Thus, the OIP had no opportunity to consider the very issues that Hidalgo
has raised in court.” Id. at 1259. The reasoning cuts against the Plaintiff’s
argument and bolsters the DEA’s exhaustion argument because Plaintiff
has 	not 	shown 	that 	the 	OIP 	in 	this 	case, 	as 	in 	Hidalgo, 	had 	an
opportunity to consider the Plaintiff’s issue.
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postmarked, . . . within 90 calendar days after the date of the response.”
§ 16.8(a) (emphasis added) (effective Feb. 3, 2017). A postmark means:
“An official mark put by the post office on an item of mail . . . to indicate
the 	place 	and 	date 	of 	sending 	or 	receipt.” 	Postmark, 	Black’s 	Law
Dictionary (12th ed. 2024).
Likewise, in DEA’s initial denial letter, the agency specifies that
the “appeal must be postmarked . . . within 90 days of the date of [the
agency’s] response to your request.” Doc. 17-5 at 3. Additionally, the DEA
requires that for an appeal submitted by mail, “both the letter and the
envelope should be clearly marked ‘Freedom of Information Act Appeal.’”
Id. Here, the Plaintiff has failed to submit evidence demonstrating he
had his appeal postmarked within the time allowed, or, at the very least,
was sent at all.
The only evidence Plaintiff submitted is a copy of an appeal letter
that indicates the “place and date of sending or receipt.” See Doc. 21-1 at
1. But he failed to submit a copy of the envelope which may indicate
postmarking by the post office. See id. Neither does the Plaintiff submit
a certified return receipt or any mail record from USP Canaan or other
evidence to demonstrate that his appeal in writing was “postmarked,” as
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in officially dated and sent by the post office. § 16.8(a); Postmark, Black’s
Law Dictionary (12th ed. 2024).
The DEA, however, submitted a sworn declaration by a specialist
from the OIP that states that there is no record of OIP receiving an
administrative 	appeal 	from 	the 	Plaintiff. 	Doc. 	17-6 	at 	2. 	And,
importantly, the Plaintiff does not dispute this fact. Under this factual
record, the Plaintiff has failed to provide evidence that could lead a
reasonable factfinder to conclude that he has properly filed an appeal of
the FOIA denial, and thus cannot survive summary judgment. See Trent
v. United States Dep’t of Homeland Sec., No. 18-2591, 2020 U.S. Dist.
LEXIS 	52269, 	at 	*9-12 	(D.D.C. 	Mar. 	24, 	2020) 	(granting 	summary
judgment to agency-defendant where FOIA requester-plaintiff contended
but failed to submit evidence showing that the appeal was sent according
to the agency’s directions or any other proof to track the mail).
Allowing the Plaintiff to proceed to challenge the DEA’s initial
response without having filed an appeal “would cut off the agency’s power
to correct or rethink initial misjudgments or errors.” McDonnell, 4 F.3d
at 1241. Accordingly, the Court should grant DEA’s motion for summary
judgment. See Trent, 2020 U.S. Dist. LEXIS 52269, at *11-12 (granting
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summary judgment, after considering all the evidence, because the
requester-plaintiff failed to prove that he filed an appeal and thus failed
to exhaust his administrative remedies); Elliott v. U.S. Dep’t of Agric.,
No. 17-995, 2018 U.S. Dist. LEXIS 116230, at *4, *11 (D. Md. July 11,
2018) (granting summary judgment where the evidence establishes that
neither the request nor the appeal was properly submitted to the agency).
IV. 	RECOMMENDATION
Based on the foregoing, it is respectfully recommended that:
(1) 	The 	DEA’s 	motion 	for 	summary 	judgment 	(Doc. 	16) 	be
GRANTED;
(2) 	The Clerk of Court be directed to CLOSE this case.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any 	party 	may 	object 	to 	a 	magistrate 	judge’s 	proposed 	findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition
of a prisoner case or a habeas corpus petition within fourteen (14) days
after being served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties, written
objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the
basis for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination of
those 	portions 	of 	the 	report 	or 	specified 	proposed 	findings 	or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the
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record developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further 	evidence, 	recall 	witnesses, 	or 	recommit 	the 	matter 	to 	the
magistrate judge with instructions.
Date: December 10, 2025 	s/ Sean A. Camoni
Sean A. Camoni
United States Magistrate Judge
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