William Carroll Lanter, Plaintiff-appellant,andlinda Diane Sunshine Lanter, Plaintiff, v. Department of Justice; Federal Bureau of Investigation,defendants-appellees, 19 F.3d 33 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This pro se appeal is from an order of the district court dismissing plaintiffs' claims against the United States Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) for their failure to release certain records requested by plaintiffs. Plaintiffs appeal on the grounds that their constitutional rights were violated and that they were entitled to relief under the Freedom of Information Act (FOIA). We affirm.

Plaintiffs sought various documents from defendants and allege in this case that the documents were wrongfully withheld under the FOIA and that plaintiffs were deprived of a series of constitutional rights by the alleged withholding of documents. The record is clear that plaintiffs failed to file a timely appeal from the FBI's response to their FOIA request. Plaintiffs are required to show that they have exhausted their administrative remedies. They have failed to do so. We agree with the district court that all FOIA claims must be dismissed for failure to exhaust administrative remedies.

Plaintiffs seek a money judgment against the United States. The United States is immune from suit and has not in this case consented to be sued. Thus, the district court did not have jurisdiction to consider this claim and properly dismissed it. Plaintiffs' claims cannot be asserted against a federal agency such as DOJ or the FBI. Constitutional torts against a federal agency are barred by the doctrine of sovereign immunity. Ascot Dinner Theater, Ltd. v. Small Business Admin., 887 F.2d 1024, 1031 (10th Cir. 1989). We affirm the dismissal by the district court of all claims.

We GRANT in forma pauperis status, GRANT the certificate of probable cause and AFFIRM the dismissal by the district court for substantially the reasons stated by the district court. The mandate shall issue forthwith.