UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID EARL WATTLETON, ) ) Plaintiff, ) ) v. ) Civil Action No.: 19-1404 (BAH) ) Chief Judge Beryl A. Howell ) NANCY A. BERRYHILL, ) ) Defendant. )

MEMORANDUM OPINION

The plaintiff, David Earl Wattleton, proceeding pro se and in forma pauperis (“IFP”), filed

this lawsuit under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552a, to compel a

determination and disclosure of financial records, maintained by the Social Security

Administration (“SSA”). 1 SSA now seeks summary judgment. SSA Mot. for Summ. J. (“SSA

Mot.”), ECF No. 12; SSA Mem. Supp. Mot. for Summ. J. (“SSA Mem.”), ECF No. 12-1. For the

reasons discussed below, the motion for summary judgment is granted as to the plaintiff’s FOIA

claim, and the plaintiff’s belated asserted claim, under the Privacy Act of 1974 (“Privacy Act”), 5

U.S.C. § 552a, which materialized during briefing, is dismissed without prejudice.

1 The plaintiff sues Nancy A. Berryhill, the former acting Commissioner of the Social Security Administration. FOIA and the Privacy Act authorize suit against federal agencies but neither statute allows a right of action against individual employees of the agency. See Sherwood Van Lines, Inc. v. United States Dep't of Navy,

(D.D.C. 1990) (“FOIA only authorizes civil actions against agencies of the United States”); Abdelfattah v. U.S. Dep't of Homeland Sec.,

, 533 n.4 (D.C. Cir. 2015) (holding that the Privacy Act only creates a cause of action against federal government agencies and not individual officials). For this reason, the Court substitutes the Social Security Administration as the defendant in this matter.

1 I. BACKGROUND

The plaintiff alleges that, in February 2019, he submitted a written FOIA request to SSA.

Compl., ECF No. 1, at 2. He includes an exhibit, which he describes as a “true and correct copy

of the request.” Compl. at 2, 4 (Compl. Ex. A) (“February Request”). This single-page February

Request is undated and unsigned. See February Request. The body of the document states that it

“is a FOIA request pursuant to

, for Form W-2 for taxable years 1986–1999, the

amounts that [the plaintiff has] been paid by employer, and the taxes that have been withheld by

employer.”

The plaintiff alleges that SSA has refused to respond to this request and, in its

failure to make a timely determination, is concomitantly improperly withholding documents.

Compl. at 2.

In moving for summary judgment, SSA states that, upon notice of this lawsuit, it conducted

searches on August 8 and August 13, 2019, finding no record of any FOIA request submitted by

the plaintiff. SSA Mem. at 3; SSA Mem. Ex. A., Declaration of C.T. Monica Chyn, Division

Director for the Office of Privacy & Disclosure in the SSA Office of General Counsel (“Chyn

Decl.”) ¶ 7, ECF No. 12-2; SSA Reply, Ex. A, Declaration of Mary Ann Zimmerman, Deputy

Executive Director of the Office of Privacy & Disclosure in the SSA Office of General Counsel

(“Zimmerman Decl.”) ¶ 11, ECF No. 18–1 (averring that SSA has no record of the February

Request or any other FOIA request from the plaintiff). The plaintiff asserts a genuine dispute of

fact exists because he can “establish, beyond doubt, that [he] did mail his FOIA request to the

Social Security Administration . . .” and that “SSA received his FOIA request.” Pl.’s Opp’n to

Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 2, ECF No. 14. As proof, he attaches a responsive

letter from SSA, dated August 9, 2019.

(Pl.’s Opp’n, Ex. A.) (“August Response”). This

letter, however, is not responsive to the February Request, but instead is an agency response to a

2 separate document request from the plaintiff to the SSA. Specifically, the August Response serves

as a “response to [the plaintiff’s] April 3, 2019 request for copies of Wage and Tax Statements

(Form W-2) for 1986 through May 1999.”

(emphasis added). The August Response requests

supplemental information that was apparently missing from the plaintiff’s April 3, 2019 request

(“April Request”), including: his social security number, the exact name shown on his social

security card, any potential different names shown on an applicable W-2, his complete mailing

address and telephone number, the years requested, and the reason for the request. 2 According to

the SSA, the plaintiff has not yet provided the supplemental information for the April Request that

SSA requested in its August Response. SSA Reply in Supp. Mot. Summ. J. (“SSA Reply”) at 2,

ECF No. 17.

SSA acknowledges receipt of the April Request, but states that this request sought the

plaintiff’s own records without citing to FOIA. SSA Reply at 1; Zimmerman Decl. ¶ 7.

Consequently, pursuant to its internal policy, see Program Operations Manual System (“POMS”)

GN 003340.001, SSA construed the April Request as a first-party access request under the Privacy

Act. Reply at 1; Zimmerman Decl. at ¶ 8. SSA will not process a first-party request under FOIA

“unless a request has already been denied under the [Privacy Act],” because such individuals are

requesting their own records. Zimmerman Decl. at ¶¶ 7, 8 (citing POMS GN 03340.001). SSA

also states that the April Request was processed under the Privacy Act because SSA “generally

applies whichever law grants the requester greater access, regardless of which is cited, or even if

no law is cited by the requester” and the Privacy Act grants greater access to first-party requesters.

¶ 10 (citing POMS GN 003301.035).

2 No copy of the plaintiff’s April Request has been submitted to the Court.

3 II. STANDARD OF REVIEW

Exhaustion of remedies under FOIA is “a jurisprudential doctrine” that bars judicial review

“if ‘the purposes of exhaustion’ and the ‘particular administrative scheme’ support such a bar.”

Hidalgo v. FBI,

, 1258–59 (D.C. Cir. 2003) (citing Oglesby v. Dep't of Army,

(D.C. Cir. 1990)). The majority of FOIA claims are appropriately decided on motions

for summary judgment. Defenders of Wildlife v. Border Patrol,

(D.D.C.

2009). A court may grant summary judgment by relying on the information included in the

agency's affidavits or declarations if they are “relatively detailed and non-conclusory,” SafeCard

Servs., Inc. v. SEC,

(D.C. Cir. 1991) (internal quotation marks omitted).

Exhaustion under the Privacy Act, however, “is a jurisdictional threshold to challenging an

agency determination.” Kearns v. FAA,

(D.D.C. 2018). In assessing a

Privacy Act claim, a court has an “affirmative obligation to ensure that it is acting within the scope

of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft,

(D.D.C. 2001). “If the court determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Further, a court may

consider documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome

Stevens Pharm., Inc. v. FDA,

(D.C. Cir. 2005).

When, as here, an action is brought by a pro se plaintiff, a district court has an obligation

“to consider his filings as a whole before dismissing a complaint,” Schnitzler v. United States,

(D.C. Cir. 2014) (citing Richardson v. United States,

(D.C. Cir.

1999)), because such complaints are held “to less stringent standards than formal pleadings drafted

by lawyers.” Haines v. Kerner,

, 520–21 (1972). Nevertheless, a court need not

accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in the

4 complaint, nor must the court accept a plaintiff's legal conclusions. Browning v. Clinton,

(D.C. Cir. 2002).

III. DISCUSSION

The plaintiff’s original complaint appeared to challenge only SSA’s processing of his

February Request, pursuant to the FOIA, but during the course of summary judgment briefing he

also raised challenge to SSA’s processing of another document request made in April 2019. For

neither request has the plaintiff sought administrative review through appropriate channels within

SSA. Thus, as discussed separately below, the February Request is evaluated as a FOIA claim,

under Federal Rule of Civil Procedure 56, see Goldstein v. IRS,

, 175–76

(D.D.C. 2017); see also Powell v. Social Sec. Admin., No. 18-847,

, at *2

(D.D.C. Oct. 4, 2018), and the April Request is reviewed as a Privacy Act claim, pursuant to

Federal Rule of Civil Procedure 12(h)(3), Hidalgo,

.

A. FOIA Claim

Pursuant to FOIA, “each agency, upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with published rules ... shall make the records

promptly available to any person.”

(a)(3)(A). This obligation, however, can only

be triggered upon receipt of such a request. See Antonelli v. Fed. Bureau of Prisons,

(D.D.C. 2008) (noting that “[a]n agency’s disclosure obligations are not triggered . . .

until it has received a proper FOIA request in compliance with its published regulations”). Absent

receipt of a FOIA request, an agency “has no reason to search or produce records and similarly has

no basis to respond.” Johnson v. United States,

, 44–5 (D.D.C. 2017) (granting

summary judgment where the plaintiff had not submitted a FOIA request) (quoting Carbe v.

5 Bureau of Alcohol, Tobacco and Firearms, No. 03-CV-1658,

at *8 (D.D.C.

Aug. 12, 2004)).

Here, the plaintiff has failed to offer any objective evidence supporting his allegation that

SSA actually received the February (FOIA) Request. SSA has submitted two sworn declarations

attesting that, despite two searches, no record of the February Request, or any other FOIA request

from the plaintiff, was found. See, generally, Chyn Decl., Zimmerman Decl. The purported copy

of the February Request attached to the complaint, which is undated and unsigned, is insufficient

to generate a genuine dispute of material fact regarding SSA’s alleged receipt of the request. The

plaintiff’s reliance on the August Response is similarly ineffectual as the document is clearly

responsive to a different document request. He does not attach, for example, “a certified-mail

receipt or any other form of mailing that his missives reached their intended target. This is thus

insufficient to create a dispute of material fact that [the agency] ever received his requests[.]”

Reynolds v. Dep’t of Justice, No. 16–1428,

at *2 (D.D.C. Apr. 26, 2017).

The plaintiff has failed to show that SSA received a FOIA request prior to filing this civil

action, and therefore, summary judgment is entered on behalf of the agency as to that claim.

B. Privacy Act Claim

SSA indisputably received the April Request and treated it as a request for information

under the Privacy Act. See August Response; SSA Reply at 1; Zimmerman Decl. at ¶ 8. Although

the plaintiff’s complaint neither mentions the April Request nor alleges any cause of action under

the Privacy Act, this Request emerged in summary judgment briefing and shall be addressed.

The Privacy Act regulates the collection, maintenance, use, and dissemination of an

individual's personal information by federal government agencies. See 5 U.S.C. § 552a(e). It also

allows that “upon request by any individual to gain access to his record or to any information

6 pertaining to him which is contained in the system,” an agency shall provide the individual with

access to review such records. Id. § 552a(d)(1).

Instead of clarifying the date inconsistencies, or offering proof of mailing or receipt, the

plaintiff continues to argue that SSA’s reliance on POMS to process his February Request under

the Privacy Act, as opposed to FOIA, was improper. See Pl.’s Surreply at 3, ECF No. 19. In

support, he cites to Davis v. Secretary of Health and Human Services,

(6th Cir.

1989), and Hall v. Sebelius,

(D.D.C. 2009), for the proposition that POMS

is not “law.” Pl.’s Surreply at 3 (citing Davis,

). These arguments are unavailing.

First, the plaintiff conveniently truncates the complete quotation from Davis, which reads

quite differently in toto. The Davis court states that “[a]lthough the POMS is a policy and

procedure manual that employees of the Department of Health & Human Services use in

evaluating Social Security claims and does not have the force and effect of law, it is nevertheless

persuasive.” Davis,

(citations omitted). A review of the full text vastly changes

the interpretation.

Davis is a case founded in a review of a decision of Secretary of Health and Human

Services regarding denial of social security survivor benefits. See Davis v. Bowen, No. 87–26,

at *2–*3 (E.D. Ky. Oct. 23, 1997). The trial court affirmed the Secretary’s

decision, see

and on appeal, the Sixth Circuit affirmed the decision of the trial court, see Davis

867 F.2d at 340–41. The Sixth Circuit opined that the district court’s reliance on POMS provisions

was appropriate. See

. Hall, 689 F. Supp. 2d at 15–16, involved direct challenges to

certain POMS policies under Medicare Act, Social Security Act, and Administrative Procedure

Act. The court determined that POMS constituted a final agency action and was subject to judicial

7 review. See

. Neither of these cases are factually comparable to the instant matter and only

serve to undercut the plaintiff’s legal argument.

Second, the plaintiff is mistaken in insinuating that SSA may not abide by its internal policy

in processing his Request(s). FOIA provides agencies express statutory authority to establish their

own rules concerning “the time, place, fees (if any) and procedures to be followed” in requesting

records.

(a)(3)(A); see also

§§ 552 (a)(4)(A); (a)(6)(D); (a)(6)(E). Similarly,

the Privacy Act mandates that “each agency that maintains a system of records shall promulgate

rules” relating to various procedures, fees, and other myriad requirements. 5 U.S.C. § 552a(f).

Consequently, SSA’s reliance on POMS in making determinations and in justifying those

decisions is entirely appropriate.

The plaintiff has also failed to offer any argument as to how SSA’s reliance on its own

internal procedures was somehow more restrictive to his request for information than if SSA

processed the request under FOIA. To the contrary, SSA’s policy was to apply the available

procedure that provided more access to records. Zimmerman Decl. at ¶ 10 (citing POMS GN

003301.035). SSA communicated this information to the plaintiff in the August Response and

requested necessary supplemental information. In order to conduct a search and disclosure,

including those seeking to retrieve earnings or benefit information, SSA requires specific

information about an individual. See Mathis v. Department of Justice, No. 16-1712,

at *6 (D.D.C. Sept. 27, 2018) (citing

(b)); see also

;

§§ 401.45; 401.50(a); 401.95; POMS RM 02019.001. To date, the plaintiff has failed

to provide this supplemental information. This failure to perfect the April Request constitutes

failure to exhaust administrative remedies. Ramstack v. Dep’t of Army,

, 102–

04 (D.D.C. 2009) (citations and quotation marks omitted) (granting summary judgment where the

8 plaintiff failed to perfect his Privacy Act request). Until he perfects his request under the Privacy

Act, the plaintiff may not bring a Privacy Act claim. See Zimmerman Decl. at ¶¶ 7, 8 (citing

POMS GN 03340.001).

Even if the plaintiff’s claims related to the April Request were properly before the Court,

SSA’s treatment of the April Request under the Privacy Act was proper and any claims relating to

the April Request are dismissed without prejudice.

IV. CONCLUSION

For the foregoing reasons, SSA’s motion for summary judgment as to the FOIA claim

related to the plaintiff’s February 2019 FOIA request is granted. To the extent that the plaintiff

has also challenged SSA’s processing of his April 2019 Privacy Act Request, this claim is

dismissed, without prejudice. An Order consistent with this Memorandum Opinion will be issued

contemporaneously.

________/s/_________________ BERYL A. HOWELL Date: March 3, 2020 Chief United States District Judge

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