instructing him to consider that letter, "as a denial of your
appeal," and informing him that he could bring any further
actions concerning this matter in "an appropriate federal court."
Id. Ex. R.
On July 16, 1998, plaintiff filed a Notice of Motion for a
Preliminary Injunction with an accompanying Affidavit and
Memorandum of Law. On October 29, 1998, this Court denied that
motion. See Eison v. Kallstrom et. al., 98 Civ. 6277(SAS)
(S.D.N.Y. October, 29, 1998). In light of Plaintiff's pro se
status, the Court construed plaintiff's Memorandum of Law as a
complaint and ordered plaintiff to serve his Complaint by January
15, 1999. On December 15, 1998, plaintiff served his Complaint
alleging that the FBI demonstrated a "pattern and practice" of
delaying plaintiff's FOIA request, and sought injunctive relief
requiring the FBI to provide an expedited response.
On December 28, 1998, the FBI sent plaintiff a letter informing
him that 249 pages of his request were available for release.
See Hodes Dec. Ex. S. The documents were sent with a Form 4-694
dated January 27, 1999. This form explained that only 235*fn1 of
971 pages were being released and indicated that the remaining
pages were being withheld due to provisions in
5 U.S.C. § 552(b)(2), (b)(3), (b)(7)(A), (b)(7)(C), (b)(7)(D), (b)(7)(E),
and 5 U.S.C. § 552a (j)(2). Id. Ex. U. No specific explanations
were provided beyond checkmarks on the form which indicated these
By letter dated March 8, 1999, plaintiff informed the FBI that
he intended to appeal the FBI's decision due to the withholding
of the bulk of his requested documents and the inadequate
explanation for that determination. See Supplemental
Declaration of Scott A. Hodes Ex. A. Eison received a response
dated April 28, 1999, from an OIP FOIA Specialist who informed
him that his appeal was received on March 17, 1999, but that due
to a backlog of pending appeals, there would again be a delay in
processing his request. Id. Ex. B.
On May 19, 1999, defendants brought these motions for
dismissal, or in the alternative, summary judgement, pursuant to
Federal Rules of Civil Procedure ("Fed. R Civ. P.") 12(b)(1),
12(b)(6), and 56. Eison responded with a Memorandum in Opposition
expressing his desire to amend his initial Complaint. Eison seeks
to replace his now moot request for timely compliance with his
FOIA request with a petition that the Court instruct the FBI to
release the aforementioned withheld documents.
Defendants make three arguments in support of their motions.
First, defendants claim that Eison has sued individual federal
officials, while FOIA only permits suits against agencies.
Second, defendants argue that the Complaint should be dismissed
as moot because it sought injunctive relief expediting the FBI's
response to plaintiff's FOIA request, which was no longer
necessary in view of the production of the documents. Finally,
defendants assert that this Court lacks subject matter
jurisdiction as plaintiff has failed to exhaust his
A. FOIA Only Permits Suits Against Agencies
Defendants argue that Kallstrom, Roth, and O'Brien must be
dismissed as defendants under Rules 12(b)(1) and 12(b)(6) on the
ground that FOIA only authorizes suits against federal agencies
and not individuals. Defendants are correct. See Mamarella v.
County of Westchester, 898 F. Supp. 236, 238 (S.D.N.Y. 1995)
("Nor can Pirro individually be required to comply with his
request under the FOIA or the Privacy Act because the plain
language of both acts provides that only `agencies' are subject
to the FOIA and the Privacy Act. It follows that the
statutes do not create a cause of action against individuals.").
Plaintiff has consented to dismissing the individual defendants
and moves for leave to amend his Complaint to substitute
"Department of Justice" in place of those defendants.
In an analogous case, Platsky v. CIA, 953 F.2d 26, 28 (2d
Cir. 1991), the court explained that:
Pro se plaintiffs are often unfamiliar with the
formalities of pleading requirements. Recognizing
this, the Supreme Court has instructed the district
courts to construe pro se complaints liberally and
to apply a more flexible standard in determining the
sufficiency of a pro se complaint than they would
in reviewing a pleading submitted by counsel.
In Platsky, the Court of Appeals determined that the District
Court had erred in dismissing the complaint rather than allowing
the plaintiff to amend his pleadings to name individuals rather
than federal agencies as defendants.*fn2 Accordingly,
plaintiff's motion to amend his Complaint to substitute the
Department of Justice for the individual defendants is granted.
B. The Complaint Should Be Dismissed As Moot
Defendants argue that plaintiff's request for injunctive relief
expediting the FBI's response to his FOIA request is moot because
the FBI has now responded to plaintiff's FOIA request. Eison
acknowledges that the FBI has responded to his original request
for documents. However, he contends that he was wrongly denied
access to approximately 700 of the 971 pages initially found
responsive to his request. Accordingly, Eison now challenges the
quality, rather than the timeliness, of the FBI's response.
Plaintiff seeks to amend his Complaint to reflect this new issue.
Plaintiff's motion to amend falls under Rule 15(d) which
applies to events that have occurred since the date of the filing
of the pleading. The allegations in the supplemental pleading,
"do not need to arise out of the same transaction or occurrence
as the original; they need only bear some relationship to the
subject of the original pleading." (3 Moore's Federal Practice,
§ 15.30 at 15-108 (Matthew Bender 3d ed. 1998)). Permission to
amend may be granted "even though the original pleading is
defective in its statement of a claim for relief." Fed.R.Civ.P.
The goal of Rule 15(d) is to establish a, "liberal policy
favoring a meritbased resolution of the entire controversy
between the parties." Katzman v. Sessions, 156 F.R.D. 35, 38
(E.D.N.Y. 1994). Accordingly, the motion should be granted unless
the nonmovant is able to demonstrate either "bad faith on the
part of the moving party, the futility of the claims asserted
within the application, or undue prejudice to the nonmovant."
Id. at 38. See also Duran v. City of New York, 96 Civ.
4219(MBM), 1999 WL 294989 (S.D.N.Y. May 10, 1999). Defendants do
not contend that Eison brings his supplemental claims in bad
faith; nor do they argue that his Amended Complaint will cause
them any particular prejudice.
Defendants do argue, however, that the amendment would be
futile as they allege that plaintiff has failed to exhaust his
administrative remedies regarding the FBI's FOIA response.
Defendants cite to Voinche v. F.B.I., 999 F.2d 962, 963 (5th
Cir. 1993), which states that, "The Freedom of Information Act
requires exhaustion of administrative remedies prior to seeking
judicial review." Voinche presented a similar claim to that
asserted here. After he sued the FBI complaining of its delay in
responding to his FOIA request, the FBI responded and Voinche
then challenged the adequacy of that production. Voinche is
distinguishable, however, because "[a]lthough
[he] exhausted his administrative remedies [regarding] the
tardiness of the FBI's response, he has not challenged the
adequacy of the FBI's response administratively." Voinche, 999
F.2d at 963. Here, DOJ's letter of April 28, 1999, clearly
indicates that on March 17, 1999, Eison specifically appealed the
adequacy of the FBI's response.
The FOIA requires that "[e]ach agency upon any request for
records . . . shall . . . make a determination with respect to
any appeal within twenty days." 5 U.S.C. § 552(a)(6)(A)(ii). The
statute further specifies that, "[a]ny person making a request to
any agency for records . . . shall be deemed to have exhausted
his administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit provisions
of this paragraph." 5 U.S.C. § 552(a)(6)(C). Eison's appeal was
received by the FBI on March 17, 1999. Obviously, more than
twenty days have elapsed since that appeal was served.
Accordingly, Eison has effectively exhausted his administrative
remedies with respect to the adequacy of the FBI's response See
Oglesby v. U.S. Dept. Of the Army, 920 F.2d 57, 71 (D.C.Cir.
1990) ("Once the head of the agency has made a determination on
appeal, or the twenty-day statutory deadline for the appeal
decision has passed, he may bring suit in federal district court
pursuant to 5 U.S.C. § 552(a)(4)(B)").
On April 28, 1999, the FBI acknowledged that it could not
respond in a timely manner. Because Eison has exhausted his
administrative remedies, the proposed amendment, covering the
adequacy of the DOJ's response, is not futile. Therefore,
plaintiff's motion to amend his Complaint is granted.
For the foregoing reasons, defendants' motions to dismiss and
for summary judgement are denied. Plaintiff may file and serve an
Amended Complaint by August 1, 1999. A status conference is
scheduled for August 4, 1999, at 4:30.