United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING, IN PART, AND
DENYING, IN PART, DEFENDANTS' MOTION TO DISMISS
matter comes before the Court upon Defendants Joel Saavedra
and the U.S. Department of Labor Wage and Hour Division
(DOL)'s Motion to Dismiss and supporting memorandum
(collectively, Motion to Dismiss) brought under Fed.R.Civ.P.
12(b)(1) and (6), and filed on June 10, 2016. (Docs. 4 and
5). Plaintiff Eddie Beagles filed his Response and Memorandum
in Opposition to Defendant's [sic] Motion to Dismiss on
June 22, 2016. (Docs. 8 and 9). Mr. Saavedra and the DOL
filed a reply on July 11, 2016. (Doc. 15). Defendants claim
that the Court lacks subject matter jurisdiction because Mr.
Saavedra is not a proper defendant and Plaintiff has not
exhausted his administrative remedies under the Freedom of
Information Act (FOIA). (Doc. 5) at 2. Having considered the
parties' arguments and applicable law, the Court grants,
in part, and denies, in part, the Motion to Dismiss.
Specifically, the parties agree that Mr. Saavedra is an
improper party, so the Motion to Dismiss is granted as to
Defendant Joel Saavedra. The Motion to Dismiss is denied,
however, as to the DOL because Plaintiff exhausted his
submitted a request under FOIA to the DOL on September 3,
2013. (Doc. 5) at 1. The request sought information about
Plaintiff and his former employer, the New Mexico Department
of Workforce Solutions, and was directed to Joel
Saavedra's attention. Id. Mr. Saavedra was a DOL
employee. Id. On September 23, 2013, Mr. Saavedra
responded to Plaintiff's request on behalf of the DOL.
Id. In its response, the DOL provided copies of a
number of documents the DOL deemed properly disclosable.
Id. (citing (Doc. 1-2) at 9-11). However, the DOL
correspondence noted that the DOL withheld approximately 18
documents under specific FOIA exemptions. Id.
Plaintiff submitted a letter appealing the DOL's decision
to withhold the 18 documents on December 15, 2013.
Id. at 4. On January 14, 2014, the DOL sent
Plaintiff a letter acknowledging receipt of the appeal and
informing Plaintiff that the appeal was being processed.
Id. at 5. A year went by and Plaintiff received no
further information from the DOL, so on January 29, 2015,
Plaintiff sent another letter, this time through counsel,
requesting information on the status of his appeal. (Doc. 9)
at 1. Plaintiff received no response. Id. Plaintiff
argues that by filing an appeal and receiving no response for
more than two years, he constructively exhausted his
administrative remedies. The Federal Defendants counter that
Plaintiff has not exhausted his administrative remedies
because his appeal remains ongoing. (Doc. 5) at 5.
Standard of Review
Defendants seek dismissal of Plaintiff's claims under
Rules 12(b)(1) (lack of subject matter jurisdiction) and
12(b)(6) (failure to state a claim upon which relief can be
granted). (Doc. 5) at 3. When a defendant seeks to dismiss a
claim under both Rules 12(b)(1) and 12(b)(6), Plaintiff must
first carry the burden of proving the Court has jurisdiction.
Mounkes v. Conklin, 922 F.Supp. 1501, 1505 (D. Kan.
1996). The Tenth Circuit has held that “the exhaustion
requirement is not jurisdictional because the FOIA does not
unequivocally make it so.” Hull v. I.R.S., U.S.
Dep't of Treasury, 656 F.3d 1174, 1182 (10th Cir.
2011) (citing Hidalgo v. FBI, 344 F.3d 1256, 1258
(D.C.C. 2003)). So while “exhaustion remains a hurdle
that FOIA plaintiffs must general clear in order to obtain
relief through the courts...[i]t is just not a jurisdictional
hurdle.” Id. at 1183. Accordingly, dismissal
pursuant to Rule 12(b)(1) is not warranted.
12(b)(6) authorizes a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint need not
set forth detailed factual allegations, yet a “pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action” is insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. To survive a
motion to dismiss, a plaintiff's complaint must contain
sufficient facts that, if assumed to be true, state a claim
to relief that is plausible on its face. Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010); Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(requiring plaintiffs to “nudge their claims across
the line from conceivable to plausible”).
Discussion: Exhaustion of Administrative Remedies
creates a private cause of action for the benefit of persons
who have requested certain records from a public agency and
whose request has been denied. 5 U.S.C. § 552(a)(3).
However, a person requesting information under FOIA is
required to exhaust administrative remedies prior to filing
suit in federal court. Oglesby v. U.S. Dept. of Army, 920
F.2d 57, 61 (D.C.C. 1990) (requiring plaintiff
administratively appeal even untimely agency responses).
Exhaustion allows the agency to have the full opportunity to
exercise its discretion and expertise, and to make a factual
record to support that discretion. Id. (explaining
FOIA ensures agencies benefit of full administrative process
before suit can be filed).
sent a letter to the DOL on December 15, 2013, appealing the
agency's decision to withhold certain documents under
statutory exemptions. (Doc. 1-3) at 1-2. The DOL responded to
Plaintiff's appeal on January 14, 2014, by acknowledging
receipt of the appeal and noting that it was “being
processed.” Id. at 3. According to Plaintiff,
the DOL still has not made a determination on the appeal from
December 15, 2013, more than 2 years later, and that the
DOL's failure to do so in a timely matter violates the
FOIA, allowing Plaintiff the opportunity to proceed with his
claim in federal court. Id. In other words,
Plaintiff argues that he constructively exhausted his
administrative remedies. Id. Specifically, Plaintiff
contends that FOIA “recognizes a constructive
exhaustion doctrine for the purposes of judicial review upon
the expiration of certain relevant FOIA deadlines.”
(Doc. 9) at 3 (quoting Nurse v. Sec'y of the Air
Force, 231 F.Supp.2d 323, 328 (D.D.C. 2002)).
argues that FOIA “only requires a response to
a FOIA request within the [twenty]-day period, not production
of the requested documents.” (Doc. 15) at 3 (emphasis
added) (quoting Navistar, Inc. v. U.S. EPA, 2011 WL
3743732, at *4 (D.D.C.)). The DOL claims that its January 14,
2014, correspondence indicating the appeal was being
processed satisfied FOIA's notification requirement.
Id. The DOL argues that Plaintiff's appeal
remains ongoing, therefore, he has failed to exhaust his
administrative remedies and is precluded from pursuing
judicial review. (Doc. 5) at 5.
Tenth Circuit has described exhaustion under FOIA as “a
prudential consideration rather than a jurisdictional
prerequisite.” Hull, 656 F.3d at 1181-82
(citation omitted). Here, Plaintiff availed himself of the
right to appeal the DOL's decision to withhold documents.
(Doc. 1-2) at 12. More than two years passed without any
response from the DOL addressing whether it would release any
additional information or deny the appeal outright. (Doc. 9).
Because exhaustion is a prudential consideration and the
purposes of exhaustion have been served (i.e. the agency has
had a full opportunity to exercise its discretion and
expertise and to make a factual record to support its
discretion, even if the DOL has chosen not to do so), the
Court should now have the opportunity to decide the FOIA
claims on the merits.
person making a request to any agency for
records…shall be deemed to have exhausted his
administrative remedies with respect to such request if the
agency fails to comply within the applicable time limit
provisions of this paragraph.” 5 U.S.C. §
552(a)(6)(C). Upon a request for records, agencies are
required to determine whether to comply with the request
within 20 days of receipt and to “immediately”
notify the requestor. 5 U.S.C. § 552(a)(6)(A).
“FOIA commands that a federal agency
‘promptly' make records available upon a request
which ‘reasonably describes such records and…is
made in accordance with published rules stating the time,
place, fees (if any), and procedures to be followed.”
Pollack, 49 F.3d at ...