UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KURT KANAM, Plaintiff, No. 18-cv-3149 (RDM) v. OFFICE OF BENTON PETERSON, Defendant. MEMORANDUM OPINION The matter is before the Court on Defendant’s motion to dismiss. Dkt. 6. On December 17, 2018, Plaintiff filed suit against “the Office of Benton Peterson” under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking all documents published in the Federal Register which supported or refuted various arguments Assistant U.S. Attorney Peterson had made in a motion to dismiss in another case. Dkt. 1 (Compl.); see also Dkt. 3 (Amd. Compl.). In response, Defendant moves to dismiss the amended complaint on two grounds. First, Defendant asserts that Plaintiff has failed to exhaust his administrative remedies under FOIA because he failed to follow agency procedures for submitting a FOIA request. Dkt. 6 at 5–6 (citing 5 U.S.C. § 552(a)(1) & (3)). Second, Defendant asserts that, even if Plaintiff had exhausted his administrative remedies, Plaintiff’s amended complaint nevertheless fails to state a claim because his request does not seek “agency records” subject to FOIA. Dkt. 6 at 6–7. The Court agrees with Defendant that Plaintiff’s claim fails because he did not follow the agency’s procedures for submitting a FOIA request. The Court will, accordingly, DISMISS Plaintiff’s amended complaint. I. BACKGROUND Prior to filing this case, Plaintiff brought a separate suit against the Department of the Interior. He sought an injunction under the Administrative Procedure Act (“APA”) to compel the Department of the Interior to add the Pilchuck Nation to the list of Federally Recognized Tribes. See Dkt. 1 (Compl.), Kanam v. Bernhardt, No. 18-cv-1760 (D.D.C. July 23, 2018). The Department of the Interior moved to dismiss Plaintiff’s APA claim. Dkt. 5, Kanam v. Bernhardt, No. 18-cv-1760. In lieu of filing an opposition, Plaintiff mailed Benton Peterson, the Assistant U.S. Attorney (“AUSA”) who was representing the Department of the Interior, a letter styled as a FOIA request, see Dkt. 1 at 5–8 (Compl. Attachment A), but bearing more of a resemblance to contention interrogatories or document requests. Plaintiff’s letter comprised nineteen individual requests for documents published in the Federal Register that either supported or refuted certain arguments made by AUSA Peterson in the Department’s motion to dismiss. Dkt. 1 at 5–8 (Compl. Attachment A). The Court in Kanam v. Bernhardt ultimately dismissed the case because Plaintiff failed to comply with its repeated orders to file an opposition. See Dkt. 13, Kanam, No. 18-1760. Plaintiff then filed this lawsuit against “the Office of Benton Peterson” to compel Defendant to act on his FOIA request. See Dkt. 1 (Compl.). II. ANALYSIS On a motion to dismiss, the Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft ...
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