1 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 (“F OIA”), 5 U.S.C. § 552 a , to compel a determination and disclosure of financial records, mai ntained by the Social Security Administration (“SSA”). 1 SSA now seeks s um mary j udgment . 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, 732 F. Supp. 240 , 241 (D.D.C. 1990) (“ FOIA only authorizes civil actions agains t agencies of the United States”); Abdelfattah v. U.S. Dep't of Homeland Sec ., 787 F.3d 524, 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.2 I. BACKGROUND Th e 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) (“Februa ry 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 5 U.S.C. § 552, for Form W

- 2 for taxable yea rs 1986

– 1999, the amounts that [ the plaintiff has] been paid by employer, and the taxes that have been withheld by employer.” I d . The plaintiff alleges that SSA has refused to respond to this request and, in its failure to make a timely determination, is concomitantly improperly withholdi n g 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 Offi ce of Privacy & Disclosure in th e SSA Office of General Counsel (“Zimmerman Decl.”) ¶ 11, ECF No. 18

– 1 ( aver ring that SSA has no record of the February Request or any other FOIA request from the plaintiff )

. T he plaintiff asserts a genuine dispute of fact ex ists 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. Id. at 5 ( 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 a3 separate document request from th e 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. ” Id. (emphasis added). The August Response requests

su pplem ental 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 poten tial 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 th is r equest sought the
p laintiff’ s own records without cit ing 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. S SA 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 tha t 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. Id. ¶ 10 (citing POMS GN 0033 01.035).

2 No copy of the plaintiff’s April Request has been submitted to the Court.4 II. STANDARD OF REVIEW Exhaustion of remedies under FOIA is “a jurisprudential doctrine” that bars judicial review “if ‘the purposes of exhaustio n’ and the ‘particular administrative scheme’ support such a bar.” Hidalgo v. FBI , 344 F.3d 1256, 1258

– 59 (D.C. Cir. 2003) (citing Oglesby v. Dep't of Army , 920 F.2d 57, 61 (D.C. Cir. 1990)). The majority of FOIA claims are a ppropriately decided o n motio ns for summary judgment. Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (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 an d non

- conclusory,” SafeCard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) (in ternal quotation marks omitted). Exhaustion under the Privacy Act, however, “is a jurisdictional threshold to challenging an agency determination.” Kearns v. FAA , 312 F. Supp. 3d 97, 107 (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 , 185 F. S upp. 2d 9, 13 (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 i t has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005). Whe n, as here, an action is brought by a pro se plain tiff , a district court has an obligation “to consider his filings as a whole before dismissing a complai nt,” Schnitzler v. United States , 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999)), because such complaints are held “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner , 404 U.S. 519, 520

– 21 (1972). Nevertheless, a court need not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in the5 complaint, nor must the court accept a plaintiff's legal conclusions. Browning v. Clint on , 292 F.3d 235, 242 (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 with in SSA. Thus, as discussed separately below, t he February Request is evaluated as a FOIA claim , under Federal Rule of Civil Procedure 56 , s ee Goldstein v. IRS , 279 F. Supp. 3d 170, 175

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

- 847, 2018 WL 4840356, at *2 (D.D.C. Oct. 4, 2018) , and t he April Request is reviewed as a Privacy Act claim, pursuant to Federal Rule of Civil Procedure 12(h)(3) , Hidalgo , 344 F.3d at 1260.
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.” 5 U.S.C. § 552(a)(3)(A). This obligation, however, can only be triggered upon receipt of such a request. See Antonelli v. Fed. Bureau of Prisons , 591 F. Supp. 2d 15, 26 (D.D.C. 2008) (noting that “[a]n agency’s disclosur e 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 , 239 F. Supp. 3d 38, 44

– 5 (D.D.C. 2017) (granting summary judgment where the plaintiff had not submitted a FOIA request) (quoting Carbe v.6 Bureau of Alcohol, To bacco and Firearms , No. 03

- CV

- 1658, 2004 WL 2051359 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 swor n 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 Dec l ., Zimmerman Decl. T he purported copy of the February Request attached to the compla int, which is undated and unsigned, is insufficient to generate a genuine dispute of material fact regarding SSA’s alleged receipt of the request. The
p laintiff’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 d ispute of material fact that [the agency] ever received his requests [.]” Reynolds v. Dep’ t of Justice , No. 16

– 1428 , 2017 WL 1495932 at *2 (D.D.C. Apr. 26, 2017). The p laintiff has failed to show that SSA received a FOIA request prior to filing this civil action , and therefore, summary judgment is entered on b ehalf 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 Rep ly 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, th is Request emerged in summary judgment briefing and shall b e 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 o r to any information7 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 inco nsistencies , or offering proof of mailing or receip t, the plaintiff continues to argue that SSA’s reliance on POM S to process his February R equest 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 S ervices , 867 F.2d 336 , 340 (6th Cir. 1989), and Hall v. Sebelius , 689 F. Supp. 2d 10, 21 (D.D.C. 2009), for the proposition that POMS is not “law.” Pl.’s Surreply at 3 (citing Davis , 867 F. 2d at 340). 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 Serv ices use in evaluating Social Security claims and does not have the force and effect of law, it is nevertheless persuasive

. ” Davis , 867 F. 2d at 340 (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,
1987 WL 123576 at *2

– *3 (E.D. Ky. Oct. 23, 1997). The trial court affirmed the Secretary’s decision , see id. , 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 id . at 340. Hall , 689 F. Supp. 2d at 15

– 16, involved direct challenges to certain POMS policies under Medicare Act, Social Security Act, and A dministrative Procedure Act. The court determined that POMS constituted a final agency action and was subject to judicial8 review. See id. at 21. 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. 5 U.S.C. § 552 (a)(3)(A); see also id. §§ 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 PO MS 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
0033 01.035). SSA communicated this information to the plaintiff in the August R esponse and requested necessary supplemental information. In order to conduct a search and disclosure, including those seeking to retrieve e arnings or benefit information, SSA requires specific information about an individual. See Mathis v . Department of Justice , No. 16

- 1712 , 2018 WL
4637356 at *6 (D.D.C. Sept. 27, 2018) (citing 20 C.F.R. § 404.810(b)); see also 20 C.F.R. § 401.40; id. §§ 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 R equest constitutes failure to exhaust administrative remedies. Ramstack v. Dep’t of Army , 607 F. Supp. 2d 94 , 102

– 04 (D.D.C. 2009) (citations and quotation marks omitted) (granting summary judgment where the9 plaintiff failed to perfect his Privacy Act request). Until he perfects his request under the Privacy Act, t he plaintiff may not bring a Privacy Act claim

. See Zimmerman Decl. at ¶¶ 7, 8 (citing POMS GN 03340.001). Even if the plai ntiff’s claims related to the April R equest were properly before the Court, SSA’s treatment of the April R equest 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. T o the extent that the plaintiff has also challenged SSA’s processing of his April 2019 Privacy Act Request , this claim is dismissed , without prejudice . A n Order consistent with this Memorandum Opinion will be issued contemporaneously.

________ /s/_____________

____ BERYL A. HOWELL Date: March 3, 2020 Chief United States District Judge