UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANTHONY ROBERSON,

Plaintiff,

v. Civil Action No. 1:20-cv-02431 (CJN)

FEDERAL BUREAU OF INVESTIGATION,

Defendant.

MEMORANDUM OPINION

Anthony Roberson, a Texas state prisoner proceeding pro se and in forma pauperis, sued

the Federal Bureau of Investigation under the Freedom of Information Act to compel the

production of records related to his criminal prosecution. The FBI now seeks dismissal or in the

alternative summary judgment, contending that Roberson has failed to exhaust his administrative

remedies and that res judicata bars his FOIA claim. Because the FBI has not established that

Roberson failed to exhaust his administrative remedies, and because the dismissal of Roberson’s

previous FOIA action does not have preclusive effect, the Court denies the FBI’s motion.

Background

In recent years, Roberson has submitted at least two FOIA requests for documents from

the FBI. The first of those requests was the subject of the district court’s opinion in Roberson v.

FBI, No. 18-1593,

(D.D.C. Nov. 12, 2019). To briefly summarize, the FBI

received Roberson’s request at issue in that case on May 23, 2018. Id. at *2. The request consisted

of 27 parts, which the FBI determined concerned “three distinct subjects”: (1) “the genetic loci

showing the number of loci required to prove identity”; (2) “records of a third party”; and (3)

1 “records pertaining to a laboratory file.” Id. at *1 (quotations omitted). Three business days after

receiving the request, the FBI responded with two letters informing Roberson that responsive

records about the first subject were available on the FBI’s public website and citing exemptions to

justify its nondisclosure of documents related to the second subject. Id. And 19 business days

after receiving the request, the FBI released 123 pages of responsive documents pertaining to the

third subject. Id. When Roberson sued to compel the production of additional records, the district

court concluded that he had not exhausted his administrative remedies and therefore granted the

FBI’s motion to dismiss. Id. at *2–3. By separate order, the district court dismissed the case

without prejudice. Order, Roberson,

(No. 18-1593), ECF No. 25.

Several months after the dismissal, Roberson submitted a second FOIA request by letter to

the FBI. The letter, dated June 15, 2020, was received by the FBI on July 2, 2020. 1 Pl.’s Opp.

¶ 8, ECF No. 13; Pl.’s Ex. 1, ECF No. 13-1. The FBI determined that this request sought the same

records that were previously processed and released to Roberson following his first request. Def.’s

Ex. 1 (“Seidel Decl.”) ¶ 5, ECF No. 11-1. In a letter dated August 6, 2020, the FBI acknowledged

receipt of Roberson’s second request and informed him that the records were previously released,

that another search located no additional records, that his request was being administratively

closed, and that Roberson could appeal the FBI’s determination to the Office of Information

Policy. Id. ¶ 6; Pl.’s Ex. 3, ECF No. 13-1. The Office of Information Policy later advised the FBI

that it had no record of an administrative appeal regarding this second FOIA request. Seidel Decl.

¶ 8.

1 Although the FBI contended in its motion that it received the request “on or about June 15, 2020,” Def.’s Mot. at 2, ECF No. 11, Roberson responded that the correct date of receipt was July 2, 2020, which the FBI did not dispute in its reply. Pl.’s Opp. ¶ 10, ECF No. 13; see Def.’s Reply, ECF No. 16.

2 Roberson alleges here, in a complaint docketed on August 18, 2020, that the FBI violated

FOIA by failing to produce responsive records. Compl., ECF No. 1. The FBI seeks dismissal or

summary judgment, arguing that Roberson failed to exhaust his administrative remedies by filing

the complaint without first pursuing an administrative appeal. In addition, the FBI argues that the

district court’s previous dismissal in Roberson v. FBI precludes Roberson from bringing this

action.

Legal Standard

Because the parties have submitted materials outside the pleadings that bear on the issues

presented, the Court analyzes the FBI’s motion as a motion for summary judgment under Rule 56.

See Fed. R. Civ. P. 12(d); Thompson v. DEA,

, 437–38 (D.C. Cir. 2007). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In making

that determination, a court must view the evidence in the light most favorable to the opposing

party.” Tolan v. Cotton,

(2014) (quotation omitted).

Analysis

I. The FBI Has Not Shown that Roberson Failed to Exhaust Administrative Remedies.

The FBI first contends that Roberson failed to exhaust his administrative remedies because

he did not administratively appeal the FBI’s denial of his request for records. Def.’s Mot. at 10,

ECF No. 11. FOIA requires exhaustion of the administrative appeal process before an individual

may seek judicial review of an agency’s denial of a request for documents. Oglesby v. U.S. Dep’t

of the Army,

, 61–62 (D.C. Cir. 1990). An individual who does not actually exhaust

his administrative remedies may constructively exhaust them if the agency fails to respond to the

request by the statutory deadline.

; see

(a)(6)(C)(i). The statute requires

3 agencies to “determine within 20 days (excepting Saturdays, Sundays, and legal public holidays)

after the receipt of any such request whether to comply with such request” and to “immediately

notify the person making such request” of the determination.

(a)(6)(A)(i).

Constructive exhaustion generally occurs if the agency fails to answer the request within 20

business days, but “[i]f the agency responds to the request after the twenty-day statutory window,

but before the requester files suit, the administrative exhaustion requirement still applies.” Jud.

Watch, Inc. v. Rossotti,

(D.C. Cir. 2003). The question here, then, is whether

the FBI responded to Roberson’s FOIA request before he filed this suit.

Generally, a pleading or other paper that is not filed electronically is filed when it is

delivered to the clerk or to a judge who accepts it for filing. Fed. R. Civ. P. 5(d)(2). But under the

“mailbox rule” for pro se prisoner pleadings, the filing date is when the prisoner “gave his motion

to prison officials for delivery to the district court.” Anyanwutaku v. Moore,

(D.C. Cir. 1998); see Houston v. Lack,

, 270–71 (1988). Courts regularly apply this

mailbox rule to determine the filing date of FOIA complaints. See, e.g., Earle v. Holder,

, 179 n.3 (D.D.C. 2011) (accepting the date that a prisoner mailed his complaint from

the prison as the filing date when measuring a statutory limitations period); Hart v. DOJ,

, 115 n.3 (D.D.C. 2009) (concluding that a prisoner’s opposition was filed when he

gave it to prison staff for mailing); see also Order at 2, Roberson,

(No. 18-

1593), ECF No. 30 (recognizing the correct filing date of Roberson’s complaint in the previous

FOIA action as June 1, 2018, not the date it was received by the court, under the mailbox rule).

Here, the parties agree that the FBI responded to Roberson’s FOIA request on August 6,

2020, which was more than 20 business days after it received the FOIA request on July 2. Def.’s

Mot. at 2; Pl.’s Opp. ¶ 10. The record supports (and the FBI does not dispute) that Roberson

4 submitted his complaint to prison officials for mailing on August 4, 2020, which the Court treats

as the relevant filing date under the mailbox rule. Pl.’s Exs. 4–5, ECF No. 13-1. Because the

FBI’s August 6 response was neither within the 20-day statutory period nor before Roberson filed

suit on August 4, the FBI has not shown that Roberson failed to constructively exhaust his

administrative remedies.

II. Res Judicata Does Not Bar Roberson’s Claim.

The FBI also argues that res judicata bars this action because Roberson “asserted the same

FOIA challenge to the Office’s actions” in his prior lawsuit and a final judgment was entered on

the merits. Def.’s Mot. at 12. The doctrine of res judicata “bars successive lawsuits if a prior

litigation (1) involving the same claims or causes of action, (2) between the same parties or their

privies, (3) ended in a final, valid judgment on the merits, (4) entered by a court of competent

jurisdiction.” Ashbourne v. Hansberry,

(D.C. Cir. 2018). The Court disagrees

that res judicata applies here.

First, Roberson’s lawsuits do not involve the same claims. Lawsuits involve the same

claims if they “share the same nucleus of facts.” Apotex, Inc. v. FDA,

(D.C.

Cir. 2004) (quotations omitted). Courts consider “whether the facts are related in time, space,

origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a

unit conforms to the parties’ expectations or business understanding or usage.”

(quotations

omitted). Res judicata “does not bar parties from bringing claims based on material facts that were

not in existence when they brought the original suit.”

.

Although the two complaints at issue here raise similar causes of action based on the FBI’s

responses to similar FOIA requests, the FOIA requests were submitted—and denied—separately

and years apart from each other. The lawsuits therefore challenge different agency determinations,

5 and the current lawsuit challenges a determination that had not yet been made at the time of the

first lawsuit. See Drake v. FAA,

(D.C. Cir. 2002) (holding that res judicata did

not bar a successive lawsuit against an agency’s “subsequent determination” and noting that key

events “had not even taken place at the time” when the plaintiff instigated the initial lawsuit). And

as noted above, the circumstances surrounding the submission of the second FOIA request are

materially different, such that Roberson has now constructively exhausted his administrative

remedies. The Court concludes that the facts underlying the lawsuits are not “closely related in

time, space, origin, and motivation” and would not have formed a convenient trial unit as required

for res judicata to apply. Apotex,

.

Second, even if the lawsuits did raise the same claim, the previous case was dismissed

without prejudice and therefore “does not operate as an adjudication upon the merits” or “have a

res judicata effect.” Cactus Canyon Quarries, Inc. v. Fed. Mine Safety & Health Rev. Comm’n,

(D.C. Cir. 2016) (quotations omitted). A dismissal of a complaint for failure to

exhaust administrative remedies does not preclude a plaintiff from bringing another suit after he

has exhausted his administrative remedies. See Murthy v. Vilsack,

(D.C. Cir.

2010); Bland v. Connally,

(D.C. Cir. 1961). The previous dismissal therefore

would not have barred Roberson from filing suit after exhausting his administrative remedies even

as to his first FOIA request, and it likewise does not bar his suit here. See Bowden v. United States,

, 436–37, 441 (D.C. Cir. 1997) (concluding that a district court erred in dismissing a

claim as barred by an earlier dismissal order based on failure to exhaust administrative remedies

because “the earlier dismissal was without prejudice”).

6 Conclusion

For these reasons, the Court denies the FBI’s motion. An order will issue

contemporaneously with this opinion.

DATE: October 10, 2022 CARL J. NICHOLS United States District Judge

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