UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) NING YE, ) ) Petitioner, ) ) v. ) Civil Action No. 09-104 (ESH) ) ERIC H. HOLDER, JR., ) Attorney General, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

Petitioner Ning Ye, an attorney proceeding pro se, seeks a writ of mandamus pursuant to

Petitioner requests that the Court order defendant to launch an investigation

into possible violations of

and 242 and

et seq., which have

allegedly occurred as a result of, or contributed to, the Department of Justice’s (“DOJ”)

prosecution of petitioner for assaulting, resisting, or impeding two U.S. Marshals in the

performance of their official duties. See Indictment, United States v. Ye, No. 08-CR-324 (D.D.C.

filed Oct. 23, 2008). Petitioner also seeks an order compelling defendant to respond to his

request under the Freedom of Information Act (“FOIA”),

et seq., for the DOJ’s

file relating to his prosecution. Defendant has opposed the petition and moved for dismissal

pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) or, in the alternative, for summary

judgment pursuant to Rule 56. For the reasons set forth below, defendant’s motion will be

granted.

1 The petition repeatedly misidentifies the mandamus statute as

.

1 A writ of mandamus is “a ‘drastic and extraordinary’ remedy ‘reserved for really

extraordinary causes.’” Cheney v. U.S. Dist. Court,

(2004) (quoting Ex parte

Fahey,

(1947)); see also Doe v. Exxon Mobil Corp.,

(D.C. Cir. 2007). It is available only if “‘(1) the plaintiff has a clear right to relief; (2) the

defendant has a clear duty to act; and (3) there is no other adequate remedy available to the

plaintiff.’” In re Medicare Reimbursement Litig.,

(D.C. Cir. 2005) (quoting

Power v. Barnhart,

(D.C. Cir. 2002)); see also Swan v. Clinton,

,

977 n.1 (D.C. Cir. 1996). The duty to be compelled must be “‘nondiscretionary,’” Pittston Coal

Group v. Sebben,

(1988) (quoting Heckler v. Ringer,

(1984)), “‘ministerial,’” “‘clearly defined,’” and “‘undisputable.’” Shoshone Bannock Tribes v.

Reno,

(D.C. Cir. 1995) (quoting 13th Regional Corp. v. Dep’t of Interior,

(D.C. Cir. 1980)). Thus, “‘[t]he law must not only authorize the demanded

action, but require it . . . .’”

(quoting 13th Regional Corp.,

).

Petitioner seeks an order compelling the initiation of an investigation into whether the

government’s prosecution of petitioner violates of the law. (Pet. at 14-15.) However, petitioner

cannot establish that he is entitled by right to such an investigation or that defendant has a clear

nondiscretionary duty to investigate. And, because petitioner can raise these challenges in the

context of his criminal prosecution, he also has an adequate alternative to mandamus.

Furthermore, the Court lacks jurisdiction to order defendant to exercise his prosecutorial

discretion to initiate an investigation. See Heckler v. Chaney,

(1985) (“[A]n

agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a

decision generally committed to an agency’s absolute discretion.”); Drake v. FAA,

,

2 71 (D.C. Cir. 2002) (“[A]s Chaney makes clear, when prosecutorial discretion is at issue, the

matter is presumptively committed to agency discretion by law.”). Therefore, the Court must

dismiss the petition with respect to this issue.

Petitioner’s FOIA request must also be rejected because he has failed to exhaust his

administrative remedies. “[E]xhaustion of administrative remedies is a mandatory prerequisite

to a lawsuit under FOIA . . . .” Wilbur v. CIA,

(D.C. Cir. 2004) (quotation

marks omitted). While exhaustion is not a “jurisdictional prerequisite” but rather a “prudential

consideration,” FOIA’s “administrative scheme favors treating failure to exhaust as a bar to

judicial review.”

(quotation marks omitted). In addition, “[f]ederal jurisdiction over a

FOIA claim is dependent upon a showing that an agency improperly withheld agency records.”

Banks v. Lappin,

(D.D.C. 2008) (citing Kissinger v. Reporters Comm.

for Freedom of the Press,

(1980)). “[T]he mailing and receipt of a FOIA

request” is “an essential element of a FOIA action,” Schoenman v. FBI, No. 04-CV-2202,

, at *13 (D.D.C. Mar. 31, 2006), because “[i]t cannot be said that an agency

improperly withheld records if the agency did not receive a request for those records.” Banks,

. “Without any showing that the agency received the request, the agency

has no obligation to respond to it.” Hutchins v. Dep’t of Justice, No. 00-CV-2349,

, at *2 (D.D.C. June 6, 2005); see West v. Jackson,

(D.D.C.

2006) (requester did not have “viable FOIA claim” where agency had no record of receiving

FOIA request and therefore did not withhold documents in violation of FOIA), aff’d, No. 06-

5281,

, at *1 (D.C. Cir. Mar. 6, 2007) (per curiam) (noting that plaintiff “has

shown no proof of receipt by the [relevant agencies] of that FOIA request”).

3 Here, petitioner contends that he submitted a request for his “USDOJ [c]ase file” (Pet. at

2), although he does not specify where or to whom he submitted that request. Defendant

contends that the DOJ has never received any such request and has submitted a declaration by

David Luczynski, an attorney advisor with the DOJ’s Executive Office for United States

Attorneys (“EOUSA”) whose responsibilities include helping the DOJ’s many divisions

coordinate their responses to FOIA requests. (See Def.’s Mot., Decl. of David Luczynski

[“Luczynski Decl.”] ¶ 1.) Luczynski attests that a systematic search for petitioner’s name in the

EOUSA’s relevant databases, incoming correspondence logs, and physical files revealed that as

of April 20, 2009, the EOUSA “had not heard from, received any [FOIA] requests from, nor had

other communications from the plaintiff.” (Id. ¶¶ 4-8, 10.) From this, Luczynski concludes that

the EOUSA had never received the request, possibly because petitioner sent it elsewhere. (See

.)

In response, petitioner contends that “the USDOJ did actually receive [his]

Administrative FOIA Request on October 2, 2008.” (Pl.’s Opp’n at 2.) There is no competent

evidence in the record to support this contention. Although petitioner has submitted a copy of a

letter from FedEx Express to an unidentified “FedEx Customer,” stating that on October 3, 2008,

in Washington, DC, “M. Parris” signed for a parcel shipped from Flushing, New York (see

Ex. 2 at 1-2), the letter does not identify the shipper, the addressee, the parcel, or the relationship

between “M. Parris” and the unknown addressee. Petitioner has therefore failed to create a

disputed issue of fact regarding whether the DOJ received his FOIA request – or whether he

even sent such a request – and the Court therefore “has no basis to discredit” DOJ’s sworn

declaration “that it has no record.” West,

. “Since the agency’s

4 declaration[] affirm[s] that a search of [DOJ]’s databases [and other records] did not produce

evidence that the agency ever received [petitioner’s] request . . . , he has not exhausted his

administrative remedies.”

Accordingly, the Court will grant defendant’s motion and dismiss

without prejudice the FOIA claims.2

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that defendant’s motion to dismiss or,

in the alternative, for summary judgment is GRANTED, and the above-captioned case is

dismissed.

This is a final appealable order. See Fed. R. App. P. 4(a).

SO ORDERED.

/s/ ELLEN SEGAL HUVELLE United States District Judge

DATE: June 12, 2009

2 Should petitioner wish to obtain information from the DOJ, he could “(re)submit [his requests], ensure receipt, and properly begin the process (anew). Depending on the outcome of these requests, [petitioner] could certainly file another FOIA-related lawsuit against [DOJ].” Schoenman,

, at *13 n.2.

5