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Case TitleLOPEZ v. CENTRAL INTELLIGENCE AGENCY et al
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv00133
Date Filed2017-01-19
Date Closed2018-03-16
JudgeJudge Amy Berman Jackson
PlaintiffEDWIN LOPEZ
Case DescriptionEdwin Lopez, who had worked as a researcher for the House Select Committee on Assassinations from July 1977 to December 1978, submitted a FOIA request to the National Archives and Records Administration for a 40-page file known as the "Ed Lopez file." After consulting with the CIA, NARA told Lopez the file was being withheld under Exemption 1 (national security) and Exemption 3 (other statutes). However, the CIA also sent him a one-page document, while refusing to confirm or deny any affiliation with the CIA. Lopez filed an administrative appeal, but after hearing nothing further from either agency, he filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Attorney's fees

DefendantCENTRAL INTELLIGENCE AGENCY
Washington, DC 20505
DefendantCENTRAL INTELLIGENCE AGENCY
DefendantNATIONAL ARCHIVES AND RECORDS ADMINISTRATION
8601 Adelphi Road
College Park, MD 20740
DefendantNATIONAL ARCHIVES AND RECORDS ADMINISTRATION
DefendantDAVID S. FERRIERO and his Successors, in their official capacity as the Archivist of the United States
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Complaint attachment 9
Complaint attachment 10
Complaint attachment 11
Opinion/Order [27]
FOIA Project Annotation: Judge Amy Berman Jackson has ruled that Edwin Lopez failed to exhaust his administrative remedies because he did not appeal a decision by the National Archives and Records Administration to withhold a 40-page document referred to as the "Ed Lopez file," which Lopez contended was related to the Kennedy assassination records, because the CIA told NARA that the record was classified. Instead of appealing, Lopez filed suit against NARA and the CIA under FOIA, the Privacy Act, and the JFK Records Act. Lopez argued that he had constructively exhausted his administrative remedies because NARA failed to respond within the 20-day time limit. Relying on Oglesby v. Dept of Army, 920 F.2d 57 (D.C. Cir. 1990), Jackson pointed out that "the special right to immediate judicial review that arises from the lack of a timely response is not available if an agency responds to a request at any time before the requestor files suit." Lopez argued that CREW v. FEC, 711 F.3d 180 (D.C. Cir. 2013), effectively overruled Oglesby. In a footnote, Jackson disagreed, observing that "CREW dealt with a FOIA requester who brought suit prior to receiving a determination from the agency, while Oglesby concerned a requestor who " like here " brought suit after an agency's tardy response to a FOIA request. The option for immediate judicial review 'lasts only up to the point that an agency actually responds. Once the agency has responded to a request, the petitioner may no longer exercise his option to go to court immediately.'" Jackson added that "to permit plaintiff to ignore NARA's directive 'would cut off the agency's power to correct or rethink initial misjudgments or errors,' and frustrate policies underlying the exhaustion requirement." Jackson then dismissed Lopez's action against the CIA because he had not made a request to the agency, explaining that "if there is no showing that the agency received the request pursuant to the agency's published procedures, the agency has no obligation to respond to it." She added that "here, thee is no allegation, let alone evidence, that plaintiff submitted a FOIA request to CIA." Lopez argued that "'the CIA had actual notice of the request' after NARA sent it a copy." Jackson pointed out that "Plaintiff cites no case law supporting his theory that 'actual notice' may serve as an alternative to properly sending a request to an agency. . ." She added that "since it is undisputed that plaintiff's request was not sent through the proper channels to CIA, the agency was not required to respond, and plaintiff did not exhaust his administrative remedies as to that agency." Because Lopez's suit failed under FOIA, Jackson found it failed under the Privacy Act as well. She indicated that "to properly exhaust administrative remedies under the Privacy Act, a plaintiff must submit a Privacy Act request to the agency and seek review within the agency under the agency's promulgated procedures. . .Plaintiff has failed to exhaust his administrative remedies as to each defendant. Plaintiff never internally appealed NARA's determination, and plaintiff never sent a proper request to CIA." Jackson also dismissed his claim under the JFK Act because that statute did not provide a private remedy.
Issues: Litigation - Jurisdiction - Failure to Exhaust, Request - Receipt
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-01-191COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-4812609) filed by Edwin Lopez. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Hardway, Dan) (Entered: 01/19/2017)
2017-01-19Case Assigned to Judge Amy Berman Jackson. (sth) (Entered: 01/23/2017)
2017-01-232SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 01/23/2017)
2017-01-233NOTICE OF CORRECTED SUMMONS by EDWIN LOPEZ re 1 Complaint, (Attachments: # 1 Summons Corrected Summons)(Hardway, Dan) (Entered: 01/23/2017)
2017-01-234NOTICE OF FILING REDACTED DOCUMENT to 1 Complaint, by EDWIN LOPEZ (The original PDF Document contained privacy information and was restricted pursuant to the E-Government Act.) (Attachments: # 1 Exhibit Redacted Exhibit 1)(Hardway, Dan) (Entered: 01/23/2017)
2017-01-245Summons(1)Issued as to NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. (td) (ztd). (Entered: 01/24/2017)
2017-02-246Unopposed MOTION for Extension of Time to File Response/Reply by CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 02/24/2017)
2017-02-24MINUTE ORDER granting 6 Motion for Extension of Time. Defendants shall file an answer or otherwise respond to the complaint by March 27, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/24/2017. (lcabj2) (Entered: 02/24/2017)
2017-02-257RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/30/2017. Answer due for ALL FEDERAL DEFENDANTS by 3/1/2017. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Hardway, Dan) (Entered: 02/25/2017)
2017-02-25RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 1/30/2017 (See docket entry 7 to view document) (ztnr) Modified text on 2/27/2017 (td). (Entered: 02/27/2017)
2017-03-278ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.(Peterson, Benton) (Entered: 03/27/2017)
2017-03-299ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendants shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of their production of documents to plaintiff on or before April 26, 2017. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/29/2017. (lcabj2) (Entered: 03/29/2017)
2017-03-30Set/Reset Deadlines: Defendants shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of their production of documents to plaintiff on or before 4/26/2017. (jth) (Entered: 03/30/2017)
2017-04-0210NOTICE of Appearance by James H. Lesar on behalf of EDWIN LOPEZ (Lesar, James) (Entered: 04/02/2017)
2017-04-2511MOTION for Judgment on the Pleadings by CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Peterson, Benton) (Entered: 04/25/2017)
2017-05-0212Unopposed MOTION for Extension of Time to File Response/Reply as to 11 MOTION for Judgment on the Pleadings by EDWIN LOPEZ (Attachments: # 1 Text of Proposed Order)(Hardway, Dan) (Entered: 05/02/2017)
2017-05-03MINUTE ORDER granting 12 Motion for Extension of Time to File Response/Reply. Plaintiff must file his opposition to defendants' 11 motion for judgment on the pleadings by May 19, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/3/2017. (lcabj2) (Entered: 05/03/2017)
2017-05-1713MOTION to Amend/Correct Complaint by EDWIN LOPEZ (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Supplement Amended Complaint, # 4 Text of Proposed Order)(Hardway, Dan) (Entered: 05/17/2017)
2017-05-17MINUTE ORDER. Defendants must inform the Court of their position on 13 plaintiff's motion for leave to file an amended complaint by May 31, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/17/2017. (lcabj2) (Entered: 05/17/2017)
2017-05-1914RESPONSE re 11 MOTION for Judgment on the Pleadings and Plaintiff's Cross Motion for Summary Judgment filed by EDWIN LOPEZ. (Attachments: # 1 Statement of Facts, # 2 Declaration Declaration of Dan L. Hardway, # 3 Text of Proposed Order)(Hardway, Dan) (Entered: 05/19/2017)
2017-05-1915MOTION for Summary Judgment by EDWIN LOPEZ (Attachments: # 1 Statement of Facts, # 2 Declaration Declaration of Dan L. Hardway, # 3 Text of Proposed Order)(Hardway, Dan) (Entered: 05/19/2017)
2017-05-3116NOTICE by CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION re Order, Set Deadlines (Peterson, Benton) (Entered: 05/31/2017)
2017-05-3117Unopposed MOTION for Extension of Time to File Consolidated Response by CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Peterson, Benton) (Entered: 05/31/2017)
2017-06-01MINUTE ORDER granting 17 consent motion for extension of time, and granting 13 plaintiff's motion for leave to file an amended complaint. The Clerk of Court is directed to docket [13-3] plaintiff's amended complaint. In light of the new complaint, defendants' 11 motion for judgment on the pleadings is DENIED AS MOOT, and plaintiff's 15 response to defendant's judgment on the pleadings and in support of plaintiff's cross-motion for summary judgment is also DENIED AS MOOT. Defendants are ordered to file any renewed motion for judgment on the pleadings by June 12, 2017. Plaintiff must file any opposition and/or cross-motion by July 3, 2017. Defendants must file any reply/cross-opposition by July 24, 2017. Plaintiff must file any cross-reply by August 7, 2017. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/1/2017.(lcabj2) (Entered: 06/01/2017)
2017-06-0118AMENDED COMPLAINT against CENTRAL INTELLIGENCE AGENCY, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, DAVID S. FERRIERO filed by EDWIN LOPEZ.(td) Modified text on 6/1/2017 (td). (Entered: 06/01/2017)
2017-06-1219MOTION for Judgment on the Pleadings (Renewed) by CENTRAL INTELLIGENCE AGENCY, DAVID S. FERRIERO, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION (Attachments: # 1 Declaration, # 2 Declaration, # 3 Text of Proposed Order)(Peterson, Benton) (Entered: 06/12/2017)
2017-07-0320RESPONSE re 19 MOTION for Judgment on the Pleadings (Renewed) and Cross Motion for Summary Judgment (Renewed) filed by EDWIN LOPEZ. (Attachments: # 1 Statement of Facts, # 2 Declaration Declaration of Dan L. Hardway, # 3 Text of Proposed Order)(Hardway, Dan) (Entered: 07/03/2017)
2017-07-0321Cross MOTION for Summary Judgment (Renewed) by EDWIN LOPEZ (Attachments: # 1 Statement of Facts, # 2 Declaration Declaration of Dan L. Hardway, # 3 Text of Proposed Order)(Hardway, Dan) (Entered: 07/03/2017)
2017-07-2422Memorandum in opposition to re 21 Cross MOTION for Summary Judgment (Renewed) filed by CENTRAL INTELLIGENCE AGENCY, DAVID S. FERRIERO, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Peterson, Benton) (Entered: 07/24/2017)
2017-07-2423REPLY to opposition to motion re 19 MOTION for Judgment on the Pleadings (Renewed) filed by CENTRAL INTELLIGENCE AGENCY, DAVID S. FERRIERO, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION. (Attachments: # 1 Statement of Facts, # 2 Exhibit)(Peterson, Benton) (Entered: 07/24/2017)
2017-08-0724REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment (Renewed) filed by EDWIN LOPEZ. (Hardway, Dan) (Entered: 08/07/2017)
2018-03-12MINUTE ORDER. On June 1, 2017, plaintiff filed an 18 amended complaint. Although he cites to numerous exhibits throughout his complaint, he failed to attach any of them to the pleading. Plaintiff is ORDERED to file all of the exhibits referenced in his amended complaint with the Court by March 13, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/12/2018. (lcabj2) (Entered: 03/12/2018)
2018-03-1225ERRATA by EDWIN LOPEZ 18 Amended Complaint filed by EDWIN LOPEZ. (Attachments: # 1 Exhibit Amended Complaint Exhibits)(Hardway, Dan) (Entered: 03/12/2018)
2018-03-13NOTICE OF ERROR re 25 Errata; emailed to dan@hardwaylaw.com, cc'd 5 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. In future, ECF login must match attorney signature on document; Do not refile. (znmw, ) (Entered: 03/13/2018)
2018-03-1526ORDER. Pursuant to Federal Rules of Civil Procedure 12(c), 56, and 58, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that defendants' 19 motion for judgment on the pleadings is GRANTED, and plaintiff's 21 cross-motion for summary judgment is DENIED AS MOOT. This is a final appealable order. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/15/2018. (lcabj2) (Entered: 03/15/2018)
2018-03-1527MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 3/15/2018. (lcabj2) (Entered: 03/15/2018)
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