            Case: 12-14700    Date Filed: 09/11/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14700
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cv-20450-MGC



MARIO SIMBAQUEBA BONILLA,

                                                             Plaintiff-Appellant,

                                       versus

U. S. DEPARTMENT OF JUSTICE,

                                                            Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (September 11, 2013)

Before DUBINA, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Appellant Mario Simbaqueba Bonilla, a federal prisoner proceeding pro se,

appeals the district court’s grant of summary judgment on his complaint brought

against the U.S. Department of Justice (the “Department”) under the Freedom of

Information Act, 5 U.S.C. § 552 (“FOIA”), upon finding that he failed to exhaust

administrative remedies because his administrative appeal was filed out-of-time.

      Under FOIA, an individual may request public records from an agency, and

the agency must provide the records unless the statute exempts the information

from disclosure. 5 U.S.C. § 552(a)(3), (b). An agency must decide whether to

comply with a request within 20 business days after receiving it. Id.

§ 552(a)(6)(A)(i). The agency must immediately notify the requestor of its

decision, and, if it denies the request, must state the reason for doing so and inform

the requestor of the right to appeal the decision to the head of the agency. Id.

“The FOIA clearly requires a party to exhaust all administrative remedies before

seeking redress in the federal courts.” Taylor v. Appleton, 30 F.3d 1365, 1367

(11th Cir. 1994). Although not a jurisdictional requirement, exhaustion of

administrative remedies is a condition precedent to filing a suit in federal court. Id.

at 1367-68; Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir.

1979).

      Section 16 of Title 28 of the Code of Federal Regulations contains the rules

and procedures that the Department follows in processing records requests under


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FOIA. 28 C.F.R. § 16.1(a). If a requestor is dissatisfied with the Department’s

response to a FOIA request, he may appeal to the Department’s Office of

Information Policy (“OIP”), but the appeal must be in writing and “must be

received by the [OIP] within 60 days of the date of the letter denying [the]

request.” Id. § 16.9(a).

      In September 2009, Bonilla made a FOIA request to the Department for

various documents. After receiving a letter from the Department, dated April 7,

2010, stating that it was denying his request, Bonilla sent a letter from prison

administratively appealing the denial to the OIP. He dated the letter May 11, 2010,

but did not provide any evidence or allege that he gave the letter to prison

authorities to be mailed on that date. The OIP received it on June 14, 2010, eight

days outside of the 60-day limit in which to file an administrative appeal under

FOIA. The OIP closed his administrative appeal because Bonilla had not met the

applicable deadline. Bonilla then filed a complaint in federal court, requesting that

the district court order the Department to release the documents that he requested.

The district court granted summary judgment in favor of the Department upon

finding that Bonilla failed to exhaust available administrative remedies because he

failed to timely file his administrative appeal.

      On appeal, Bonilla argues that the district court erred because (1) there was a

genuine issue of material fact as to the date the Department received his letter of


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appeal because the letter contained two stamps: one clearly reading “received June

14, 2010,” and one that was illegible; (2) the term “60 days” in 28 C.F.R. § 16.9(a)

should be construed to mean 60 business days (rather than calendar days), which

would make his appeal timely, even though it was received on June 14, 2010; and

(3) under the prison mailbox rule, set forth in Houston v. Lack, 487 U.S. 266, 108

S. Ct. 2379 (1988), his administrative appeal should be deemed “filed” on May 11,

2010, the date on his letter of appeal. In his initial appellate brief, for the first time,

Bonilla alleges that he gave his appeal letter to prison officials on May 11, 2010.

       We review a district court’s grant of summary judgment de novo, viewing all

facts in the light most favorable to the non-movant. Ross v. Clayton County, Ga.,

173 F.3d 1305, 1307 (11th Cir. 1999). Under Federal Rule of Civil Procedure 56,

a court will grant summary judgment if a movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(a). We may affirm on any grounds supported by

the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

Pleadings filed by a pro se litigant are construed liberally, but pro se litigants must

nonetheless conform to procedural rules, including deadlines. Albra v. Advan, Inc.,

490 F.3d 826, 829 (11th Cir. 2007); Wayne v. Jarvis, 197 F.3d 1098, 1104 (11th

Cir. 1999) (“Liberal construction does not mean liberal deadlines.”), overruled in

part Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). The Supreme Court has


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explained that an agency’s interpretation of its own regulations—even in a legal

brief—is entitled to deference unless that interpretation (1) is plainly erroneous,

(2) is inconsistent with the regulation, or (3) there is reason to suspect that the

interpretation does not reflect that agency’s fair and considered judgment. Talk

Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. ___, ___, 131 S. Ct. 2254, 2260-61

(2011) (internal quotation marks omitted).

        In Houston, the Supreme Court set forth the prison mailbox rule, holding

that, for purposes of Federal Rule of Appellate Procedure 4(a)(1), a pro se

prisoner’s notice of appeal is “filed” on the date that the prisoner delivers the

notice to prison authorities, rather than the date on which the court clerk receives

the notice. 487 U.S. at 270-73, 108 S. Ct. at 2382-83. In reaching its decision, the

Supreme Court explained that the Federal Rules of Appellate Procedure did not set

forth criteria for when the moment of filing occurs. Id. at 272-73, 108 S. Ct. at

2383.

        We have extended the rule set out in Houston from habeas corpus appeals to

complaints filed by pro se prisoners under 42 U.S.C. § 1983 and under the Federal

Tort Claims Act, 28 U.S.C. § 2671. Garvey v. Vaughn, 993 F.2d 776, 782-83

(11th Cir. 1993). However, we have not extended the prison mailbox rule to

administrative appeals under FOIA, and research reveals no published decisions by




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the Supreme Court or any other circuit court of appeals discussing the applicability

of the prison mailbox rule under similar circumstances.

      We conclude from the record that the district court properly granted

summary judgment in favor the Department because Bonilla failed to exhaust

administrative remedies. First, the illegible stamp on Bonilla’s letter of appeal

does not create a genuine issue of material fact as to the date the letter was

received because the appeal letter contained a legible stamp clearly indicating that

the Department received it on June 14, 2010. Second, the Department construes

the term “60 days” in §16.9(a) to mean 60 calendar—rather than business—days,

and that construction is entitled to deference because it is not plainly erroneous or

inconsistent with the regulation, nor is there reason to suspect that it does not

reflect the Department’s fair and considered judgment. See Talk Am., Inc., 564

U.S. at ___, 131 S. Ct. at 2260-61.

      Finally, we need not decide whether the prison mailbox rule extends to cases

involving administrative FOIA appeals because here, even if it applied, it would

not help Bonilla. Bonilla’s FOIA appeal letter contains the typed date “May 11,

2010,” but he did not so much as allege in the district court that he gave the letter

to prison authorities before the 60-day deadline in 28 C.F.R. § 16.9(a) expired.

Although in Garvey, we explained that prison authorities bear the burden of

showing a pro se prisoner’s date of delivering a document for mailing, Garvey is


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distinguishable because, here, prison authorities were not a party to the lawsuit and

Bonilla was the only person in a position to provide information concerning the

date that he gave his appeal letter to prison authorities. See Garvey, 993 F.3d at

779‒80. Because he did not even assert in the district court the date when he gave

his letter to prison officials, the prison mailbox rule—even if applicable—would

not have availed him. Therefore, we need not reach the issue of whether the prison

mailbox rule would apply here. Under the circumstances of this case, we conclude

that the district court properly granted summary judgment in favor of the

Department, and, accordingly, we affirm the judgment.

      AFFIRMED. 1




      1
          Bonilla’s motion to file reply brief out-of-time is GRANTED.

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