Zaldivar #166954 v. United States Department of Veterans Affairs et al

Filing 34

ORDER - Defendant OIG's 20 Motion to Dismiss is granted and OIG isdismissed from this action. Defendants VARO and OGC's 21 Partial Motion to Dismiss is granted. Plaintiff's claims regarding the FOIA requests he submitted on October 20, 2002, April 13, 2005 and July 10, 2007 are dismissed. The remaining claims in this action are against VARO and OGC relating to Plaintiff's April 26, 2012 FOIA request in Count One and Plaintiff's May 20, 2013 FOIA request in Count Two. Signed by Judge David G Campbell on 10/27/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Adalberto Zaldivar, Sr.,

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No. CV 14-01493-PHX-DGC (DMF)

Plaintiff,
v.

ORDER

United States Department of Veterans
Affairs, et al.,
Defendants.

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Plaintiff Jose Adalberto Zaldivar, Sr., who is currently confined in Arizona State

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Prison Complex-Eyman, brought this pro se civil rights case pursuant to 42 U.S.C.
§§ 1981, 1982, 1983, 1985, and 1986, as well as Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Freedom of Information Act
(FOIA). (Doc. 1.) Pending before the Court are: (1) Defendant Veterans Affairs Office
of Inspector General’s (OIG) Motion to Dismiss (Doc. 20), and (2) Defendant Veterans
Affairs Regional Office—Phoenix (VARO) and Office of General Counsel’s (OGC)
Partial Motion to Dismiss (Doc. 21). Plaintiff opposes both Motions (Docs. 24, 27).1
The Court will grant the Motions.

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....
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The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d
952, 962 (9th Cir. 1998) (en banc), regarding the requirements of responding to both
motions. (Doc. 22.)

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I.

Background

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On July 1, 2014, Plaintiff filed a three-count Complaint, naming as Defendants the

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OIG, the VARO, and Pima County. Plaintiff alleged in Count One that he submitted

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FOIA requests to the VARO in 2002, 2005, and 2007 for copies of statements and letters

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in his veteran compensation file that had been filed against him by his former wife,

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Rebecca Zaldivar. The VARO responded with documents that had certain personal

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information redacted. In December 2007, Plaintiff filed a FOIA appeal regarding the

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denial of certain documents he had requested earlier that year. The VARO responded

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that it had given Plaintiff the documents he requested and the only information redacted

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was Rebecca Zaldivar’s personal information, the release of which would constitute an

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“unwarranted invasion of personal privacy[.]” (Doc. 1 at 6.)2 On February 14, 2008,

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Plaintiff appealed this decision to the OGC, claiming that the VARO’s denial of this

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information hampered his “right to a fair trial” and that disclosing the redacted

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information would not invade his former wife’s privacy. (Id.) The OGC responded on

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August 4, 2010 that it was denying Plaintiff’s appeal after determining that releasing his

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former wife’s personal information would constitute an invasion of privacy and that a

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document Plaintiff sought—a claim submitted by his former wife dated October 1,

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2001—was never received by the VA and was not in Plaintiff’s file.

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Plaintiff submitted a fourth FOIA request to VARO on April 26, 2012, requesting

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various documents, including an application for apportionment to support Plaintiff’s

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dependent spouse, notes related to that application, a VA letter dated April 3, 2012,

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stating that Plaintiff’s former wife was entitled to benefits, and a list of names and contact

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information “of benefits payable claimed by surviving spouses, dependent spouses and

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children entitled to dependency and i[n]dem[n]ity compensation.” (Doc. 1 at 8.) Plaintiff

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did not receive a response to this request and he filed an appeal with the VARO. On

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The citation refers to the document and page number generated by the Court’s
Case Management/Electronic Case Filing system.
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June 21, 2012, Plaintiff received a copy of his entire claim folder except for his service

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treatment records, which VARO said had already been provided to him.

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On May 15, 2013, Plaintiff filed a complaint with the OIG pursuant to 38 C.F.R.

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§ 42, the Program Fraud Civil Remedies Act of 1986 (PFCRA), alleging that his former

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wife made false statements to the VARO.

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additional exhibits in support of his May 15, 2013 complaint to the OIG. The OIG

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notified Plaintiff on June 27, 2013 that it was responding to his May 20, 2013 complaint

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and that it had determined “that it does not warrant formal investigation by the OIG.”

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(Doc. 1 at 11.) Plaintiff filed a “Notice of disagreement” on July 18, 2013, which he said

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also served as a “motion for reconsideration on the matters of the initial complaint.” (Id.)

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Plaintiff wrote that if there was “no right to the motion for reconsideration, then to

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consider this as a notice of appeal to be forwarded to the Secretary of Veterans Affairs.”

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(Id.) Plaintiff also requested that OIG provide “any ‘handbook’ describing their appeal

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process and/or administrative appeals to higher-level agency officials before seeking help

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from the courts for relief.” (Id. at 11-12.) Plaintiff did not receive a response to his

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request as of the date of his Complaint. (Id. at 12.)

On May 20, 2013, Plaintiff submitted

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In Count Two, Plaintiff alleged that on May 20, 2013, he submitted a FOIA

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request to VARO for copies of various communications between Rebecca Zaldivar and

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the VA. Plaintiff did not receive a response and so filed an appeal on July 15, 2013.

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In Count Three, Plaintiff alleged that on June 4, 2013, he filed a FOIA request to

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VARO for documents requested or submitted by Rebecca Zaldivar “previously not

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supplied without having to make future request[s].” (Doc. 1 at 19.) Plaintiff did not

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receive a response and he filed a FOIA appeal on July 15, 2013.

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On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff

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stated a claim under FOIA and directed the OIG, the VARO, and the OGC to answer the

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FOIA claims in Counts One and Two of the Complaint. The Court dismissed the

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remaining claims and Defendants. (Doc. 9.)

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The OIG seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1),

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arguing that the Court lacks subject matter jurisdiction over it. (Doc. 20 at 2.) The

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VARO and OGC filed a partial Motion to Dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(6), arguing that three of Plaintiff’s five claims against them are barred

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by the statute of limitations.3 (Doc. 21 at 2-3.)

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II.

OIG’s Motion to Dismiss

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A.

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A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be a

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facial or a factual challenge to the existence of federal jurisdiction. White v. Lee, 227

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F.3d 1214, 1242 (9th Cir. 2000). A facial challenge alleges that the pleadings are

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insufficient to support subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373

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F.3d 1035, 1039 (9th Cir. 2004). In resolving a facial challenge, the district court must

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accept the allegations of the complaint as true. Doe v. Holy See, 557 F.3d 1066, 1073

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(9th Cir. 2009) (citing Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004)). A factual

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challenge alleges that there is no actual existence of jurisdiction. Safe Air for Everyone,

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373 F.3d at 1039. When a party makes a factual challenge, the court is not required to

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presume the truth of the allegations and may consider other properly presented evidence

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in the record for the purpose of determining the existence of subject matter jurisdiction.

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Id.

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jurisdiction, regardless of whether it is the movant. See In re Dynamic Random Access

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Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008).

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Federal Rule of Civil Procedure 12(b)(1)

The party asserting subject matter jurisdiction has the burden to prove such

B.

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Facial Challenge to OIG’s Investigation Decision
1.

Parties’ Arguments

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OIG asserts that it is making a facial challenge to Plaintiff’s claim regarding the

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OIG’s decision not to launch a formal investigation of his complaint. Thus, the Court

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must accept as true Plaintiff’s Complaint allegations. Holy See, 557 F.3d at 1073.

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In their Motion, the VARO and OGC also moved to strike portions of Plaintiff’s
Complaint, which the Court denied without prejudice. (Doc. 22.)
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OIG argues that this Court lacks jurisdiction over Plaintiff’s failure-to-investigate

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claim because there has been no waiver of sovereign immunity. OIG further argues that

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under the Inspector General Act of 1978, 5 U.S.C. app. §§ 1, et seq., the agency is

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afforded “absolute discretion in how investigations are conducted,” thus precluding any

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claim by Plaintiff under the Administrative Procedure Act (APA). (Doc. 20 at 3.) OIG

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cites to the VA’s Standards for Implementing the PFCRA to argue that the regulation

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“vests complete discretion in the VA-OIG to make an initial determination of whether the

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VA-OIG believes ‘that an action under the [PFCRA] may be warranted’ before any

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obligation to refer a matter to the VA-OGC arises.” (Doc. 29 at 2, citing 38 C.F.R.

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§ 42.4(c).) OIG also argues that Plaintiff lacks constitutional standing to challenge the

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OIG’s decisions under the PFCRA because he is a third party, notwithstanding his claim

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that he is a victim of his former wife’s alleged misconduct.

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Plaintiff responds that “sovereign immunity does not grant one a discretion on

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whether [] or not to investigate any claim.” (Doc. 24 at 3.) Plaintiff asserts that he “is

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not asking that the sovereign immunity enjoyed by the VA-OIG be waived, or that the

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PFCRA act as a waiver, thereof.” (Id. at 5.) Plaintiff contends that as a veteran and the

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“principle party” he is owed a duty to investigate” because he has “been held accountable

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and garnishment implemented for past overpayments provided to a fiduciary (Plaintiff’s

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former spouse).” (Id. at 3.) Plaintiff argues that OIG “should be held accountable for its

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failure to act and aiding or abetting false, fictitious or fraudulent claims.”4 (Id. at 7.)

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2.

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Discussion
a.

APA

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The APA “sets forth the full extent of judicial authority to review executive

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agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S.

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In his Response, Plaintiff again attempts to assert a claim under Bivens, stating
that he is suing Defendants in their individual capacity. (Doc. 24 at 4.) Plaintiff, though,
has only named federal agencies in his suit, and aError! Main Document Only. Bivens
action will not lie against the United States or its agencies. See FDIC v. Meyer, 510 U.S.
471, 486 (1994).
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502, 513, 514 (2009). Generally, a plaintiff must be seeking non-monetary relief for

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legal wrongs resulting from a final action undertaken by an agency or by an agency

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officer or employee.

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Indians v. Patchak, __ U.S. __, 132 S. Ct. 2199, 2207 (2012)). “[T]he APA does not

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apply if the ‘agency action is committed to agency discretion by law’ or if ‘statutes

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preclude judicial review.’” City of Oakland v. Lynch, 798 F.3d 1159, 1165 (9th Cir.

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2015) (quoting 5 U.S.C. § 701(a)(1), (2)). The Supreme Court has held that “an agency’s

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decision not to prosecute or enforce, whether through civil or criminal process, is a

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decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney,

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470 U.S. 821, 831-32 (1985) (noting that “when an agency refuses to act it generally does

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not exercise its coercive power over an individual’s liberty or property rights, and thus

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does not infringe upon areas that courts often are called upon to protect”). While the

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exception for actions “committed to agency discretion” is narrow, it includes “agency

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refusals to institute investigative or enforcement proceedings, unless Congress has

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indicated otherwise.” Id. at 838.

Id. (citing Match-E-Be-Nash-She-Wish Band of Pottawatomi

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Here, the OIG made the decision not to investigate Plaintiff’s complaint regarding

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his former wife. This decision falls squarely within OIG’s discretion to refuse to institute

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investigative or enforcement proceedings and is not reviewable under the APA. See

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Heckler, 470 U.S. at 831-32. Accordingly, the Court lacks subject matter jurisdiction

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over Plaintiff’s claim against OIG regarding its decision not to investigate his complaint.

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b.

PFCRA

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The PFCRA “was enacted in 1986 to allow administrative agencies to pursue

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remedies for false or fraudulent claims for benefits or payments.” Roberts v. Shinseki,

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647 F.3d 1334, 1349 (Fed. Cir. 2011) (noting that the VA’s implementing regulations

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provide that “allegations of liability under PFCRA are referred to the VA OIG, who

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conducts an investigation and reports to the VA General Counsel”). The PCFRA “was

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not enacted for citizens to utilize as a cause of action against an administrative agency

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. . . .” Ellis v. Dep’t of Veterans’ Affairs, No. CV-05-257-RHW, 2006 WL 224041, at *1

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(E.D. Wash. Jan. 27, 2006) (citing 31 U.S.C. § 3102 and Orfanos v. Dep’t of Health &

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Human Servs., 896 F. Supp. 23, 24-25 (D.D.C. 1995)). Plaintiff cannot rely on the

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PFCRA to require OIG to conduct an investigation or to grant subject matter jurisdiction

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over Plaintiff’s claim in this Court.5

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C.

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OIG asserts that it is making a factual challenge to Plaintiff’s claim regarding the

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appeals handbook, which means the Court can review evidence beyond the complaint

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without converting Defendants’ Motion to one for summary judgment. Safe Air for

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Everyone, 373 F.3d at 1039. When a defendant mounts a factual attack on subject matter

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jurisdiction, “the plaintiff must support [his] jurisdictional allegations with ‘competent

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proof.’” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting Hertz Corp. v.

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Friend, 559 U.S. 77, 99-97 (2010)). Such an attack uses the same evidentiary standard as

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used at summary judgment. Id. (citations omitted). While the Plaintiff generally bears

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the burden of proving subject matter jurisdiction by a preponderance of evidence, “if the

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existence of jurisdiction turns on disputed factual issues, the district court may resolve

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those factual disputes itself.” Id. at 1121-22 (citations omitted).

Factual Challenge Regarding Handbook

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Federal jurisdiction under FOIA “is dependent upon a showing that an agency has

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(1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Kissinger v. Reporters Comm. for

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Freedom of the Press, 445 U.S. 135, 150 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)).

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“Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies

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to force an agency to comply with the FOIA’s disclosure requirements.” United States

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Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989).

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1.

Parties’ Arguments

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OIG argues that Plaintiff’s FOIA claim regarding an appeals handbook should be

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dismissed for lack of subject matter jurisdiction because an appeals handbook does not

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exist. For support, Defendant has provided the Declaration of Jason Woodward, who is

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Because the Court lacks jurisdiction over Plaintiff’s PFCRA claim, the Court
need not reach Defendants’ argument regarding standing.
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OIG’s Deputy Assistant Inspector General for Management and Administration, which

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operates OIG’s Hotline Division. (Doc. 20-1 at 1 ¶¶ 1-3.) According to Woodward,

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“there is no right to appeal from a decision of the VA-OIG Hotline Division to decline to

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launch a formal investigation of a complaint.” (Id. at 2 ¶ 6.) Woodward attached a copy

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of the letter OIG Hotline Division sent to Plaintiff in response to his May 15, 2013

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complaint. (Id. ¶ 7; Doc. 20-1 at 10.) The letter is from a Senior Analyst, “Dee,” at the

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OIG Hotline who said that OIG had not selected Plaintiff’s complaint “for formal review

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as an OIG case.” (Doc. 20-1 at 10.) The letter informed Plaintiff that “[t]here is no

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appeal process on the disposition of a Hotline complaint. This is our final response on

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this issue.”6 (Id.)

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Woodward asserts that because there is no right to appeal OIG’s decision

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regarding a Hotline complaint, “there is no handbook outlining the procedures to follow

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if an individual wishes to appeal from such a decision.” (Doc. 20-1 at 2 ¶ 8.) If there

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were such a handbook, Woodward states that he would be aware of it. (Id.) Woodward

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also provided a copy of the VA’s “OIG Hotline Frequently Asked Questions” from its

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website, which states that “[t]here are no appeal rights from a decision by the Hotline

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Division as to the actions taken on a particular complaint.” (Doc. 20-1 at 8.)

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Plaintiff responds that this Court “has jurisdiction because Plaintiff has the right to

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information on [OIG’s] policies, procedures and appeals towards the exhaustion of

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remedies.” (Doc. 24 at 10.) Plaintiff cites to FOIA’s requirements that each agency

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prepare and make publicly available “reference materials or a guide for requesting

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records or information from the agency,” including “a handbook for obtaining various

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types and categories of public information from the agency pursuant to chapter 35 of

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Title 44, and under this section.” (Doc. 24 at 10, citing 5 U.S.C. § 552(g).)

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Plaintiff takes issue with Woodward’s Declaration, arguing that Woodward does

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not have personal knowledge of the facts set forth in his Declaration. (Doc. 24 at 12.)

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Woodward notes that the letter from OIG is incorrectly dated April 24, 2013,
when it was actually mailed to Plaintiff on or about May 24, 2013. (Doc. 20-1 at 2 ¶ 7.)
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Plaintiff asks the Court to compare the letter from Senior Analyst “Dee” attached to

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Woodward’s Declaration, which responded to Plaintiff’s May 15, 2013 complaint, and a

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different letter he received dated June 27, 2013 from Senior Analyst “DORA,”

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responding to Plaintiff’s May 20, 2013 additional evidence. (Doc. 25 at 22.) The letter

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from “DORA” states: “Our staff has reviewed your complaint and determined that it

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does not warrant formal investigation by the OIG. Our review did not result in the

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creation of an investigation report. This is our final response on this issue.” (Id.)

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Plaintiff asserts that this letter does not say that he lacks appeal rights.

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2.

Discussion

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The Court lacks jurisdiction over Plaintiff’s FOIA claim pertaining to his request

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to OIG for an appeals handbook. Agency possession of the requested documents is ‘an

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indispensable prerequisite to liability in a suit under FOIA.’” Kissinger, 445 U.S. at 155.

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OIG has provided evidence in the form of a sworn declaration that no such handbook

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exists, and has provided evidence that there is no appeal of an OIG decision not to

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investigate. Plaintiff has not offered any evidence to the contrary.

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When an agency does not possess a record or document, it cannot be claimed that

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the document was improperly withheld. Therefore, this Court lacks jurisdiction over

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Plaintiff’s claim regarding the handbook and this claim against OIG will be dismissed.

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III.

VARO and OGC’s Motion to Dismiss

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VARO and OGC seek to dismiss claims related to three of Plaintiff’s five FOIA

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requests on the basis that those claims are time-barred under 28 U.S.C. § 2401(a).

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(Doc. 21 at 2.) They seek dismissal of Plaintiff’s FOIA requests made on October 20,

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2002, April 13, 2005, and July 10, 2007.

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A.

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The statute-of-limitations defense may be raised in a motion to dismiss “only

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when the running of the statute is apparent from the face of the complaint.” U.S. ex rel.

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Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013)

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(quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th

Legal Standard

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Cir. 2010)). “A motion to dismiss based on the running of the statute of limitations

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period may be granted only if the assertions of the complaint, read with the required

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liberality, would not permit the plaintiff to prove that the statute was tolled.” Supermail

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Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (internal citations and

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quotation marks omitted). In order to dismiss a claim as untimely on a Rule 12(b)(6)

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motion, it must “appear[ ] beyond doubt that the plaintiff can prove no set of facts that

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would establish the timeliness of the claim.”

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allegations of the complaint as well as any judicially noticeable materials, an asserted

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defense raises disputed issues of fact, dismissal under Rule 12(b)(6) is improper.”

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ASARCO, LLC v. Union Pacific R. Co., 765 F.3d 999, 1004 (9th Cir. 2014) (citation

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omitted).

Id. at 1207.

Thus, “[i]f, from the

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Generally, the Court may not consider any material outside the pleadings in ruling

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on a Rule 12(b)(6) motion. United States v. Corinthian Colleges, 655 F.3d 984, 998 (9th

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Cir. 2011). But the incorporation-by-reference doctrine allows material that is attached to

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the complaint to be considered, as well as unattached evidence on which the complaint

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relies if: “(1) the complaint refers to the document; (2) the document is central to

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plaintiff’s claim; and (3) no party questions the authenticity of the document.” Id. at 999.

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If a specific statute is silent regarding the time period for filing an action, then the

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Court looks to 28 U.S.C. § 2401(a), which provides that “every civil action commenced

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against the United States shall be barred unless the complaint is filed within six years

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after the right of action first accrues.” Nesovic v. U.S., 71 F.3d 776, 778 (9th Cir. 1995).

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Because FOIA does not include its own statute of limitations, the six-year limitations

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period under § 2401(a) applies. Howard v. Pritzker, 775 F.3d 430, 437 (D.C. Cir. 2015).

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“A cause of action against an administrative agency ‘first accrues,’ within the

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meaning of § 2401(a), as soon as (but not before) the person challenging the agency

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action can institute and maintain a suit in court.” Spannaus v. U.S. Dep’t of Justice, 824

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F.2d 52, 56 (D.C. Cir. 1987). Generally, a FOIA claimant must exhaust administrative

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remedies before filing a lawsuit. Id.; see also In re Steele, 799 F.2d 461, 465-66 (9th Cir.

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1986) (“Exhaustion of a part[y’]s administrative remedies is required under the FOIA

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before that party can seek judicial review.”).

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Under FOIA, administrative remedies are exhausted “if the agency fails to comply

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with the applicable time limit provisions of this paragraph.” 5 U.S.C. § 552(a)(6)(C)(i).

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The paragraph requires the agency to “determine within 20 days (excepting Saturdays,

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Sundays, and legal public holidays) after the receipt of any such request whether to

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comply with such request” and to notify the requester of the decision and the right to

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appeal to the head of the agency any “adverse determination.” Id. § 552(a)(6)(A)(i). The

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statute also requires an agency to make a determination with respect to any appeal within

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20 business days and, if the denial of a request for records is upheld, then the agency

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must notify the requester of the provisions for judicial review. Id. § 552(a)(6)(A)(ii).

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Thus, a FOIA claim accrues either (1) when an agency fails to meet the 20-day deadline

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after receiving a FOIA request or an appeal from a denial of a FOIA request, or (2) when

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an agency makes a timely response to an appeal from a timely adverse determination of

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an initial FOIA request. Spannaus, 824 F.2d at 58-59. The agency may extend the time

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of its determination by an additional 10 days if it provides notice to the requestor in

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writing. 5 U.S.C. § 552(a)(6)(B). “If an agency fails to respond to a request within the

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time provided, ‘constructive’ exhaustion of administrative remedies has occurred and the

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requestor may seek judicial review.” Bush v. Dep’t of Justice, No. C 08-3842 JF(RS),

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2008 WL 5245046, at *3 (N.D. Cal. Dec. 16, 2008) (citing Spannaus, 824 F.2d at 58).

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“Once constructive exhaustion occurs, any available administrative appeal—i.e., actual

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exhaustion—becomes permissive in the sense in which the term is used here; the

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requester may pursue it, but his failure to do so does not bar a lawsuit.” Spannaus, 824

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F.2d at 58.

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B.

Plaintiff’s FOIA Requests
1.

October 20, 2002 FOIA Request

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Plaintiff made his first FOIA request to VARO on October 20, 2002, requesting

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copies of statements and letters in his VA compensation file from Rebecca Zaldivar.

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(Doc. 1 at 4.) On November 16, 2002, VARO provided “copies of the documents to and

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from Plaintiff’s wife,” some “with personal identifiers or information redacted, others

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provided without their enclosures.” (Id.) Plaintiff does not state that he appealed this

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response. VARO and OGC argue that Plaintiff’s cause of action as to this FOIA request

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accrued, at the latest, on or about November 16, 2002, when Plaintiff was provided

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documents in response to his request. (Doc. 21 at 4.)

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2.

April 13, 2005 FOIA Request

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Plaintiff made his second FOIA request to VARO on April 13, 2005, requesting

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copies of “supporting documents” and a copy of a VA letter dated January 6, 2004 to

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Plaintiff. (Doc. 1 at 4.) Plaintiff also sent a “Notice of Disagreement” to VARO

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regarding a VARO decision dated March 16, 2005 “and exercised the right to a personal

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hearing to present evidence and arguments on important points in plaintiff’s claim.” (Id.)

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On April 22, 2005, VARO provided four “additional copies of documents submitted by

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Rebecca Zaldivar since November 2002,” with addresses and personal information

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redacted, and a copy of a letter dated January 6, 2005. (Id. at 4-5.) Plaintiff does not

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state that he appealed this response, and he does not explain what he means by a “Notice

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of Disagreement” or what the March 16, 2005 decision entailed. VARO and OGC argue

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that the cause of action as to this second FOIA request accrued on or about April 22,

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2005, when VARO provided the documents in response to Plaintiff’s request. (Doc. 21

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at 4.)

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3.

July 10, 2007 FOIA Request

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Plaintiff made his third FOIA request to VARO on July 10, 2007, requesting

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“specific documents mentioned in documents from the previous two request releases.”

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(Doc. 1 at 5.) VARO responded on July 18, 2007 with a request for additional time to

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obtain the records. (Id.) On September 25, 2007, VARO provided 17 sets of documents

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containing duplicates from the 2002 and 2005 releases, as well as other documents not

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previously disclosed, and VARO withheld “other documents.”

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December 20, 2007, Plaintiff filed an appeal over VARO’s denial of “certain requested

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(Id.)

On or about

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records.” (Id.) VARO responded on December 28, 2007, “denying the request” and

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noting that it had provided the information Plaintiff had requested and that the only

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information redacted was Rebecca Zaldivar’s personal information, which was exempt

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from disclosure under 5 U.S.C. § 552(b)(6). (Id. at 6.) On February 14, 2008, Plaintiff

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filed an appeal to OGC. OGC acknowledged receipt of the appeal on March 4, 2008, and

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assigned case #13527 to it. On December 10, 2008, Plaintiff “inquired into the status of

7

the FOIA appeal.” (Id. at 7.) OGC responded to the FOIA appeal on August 4, 2010,

8

apparently denying the appeal and upholding the exemptions claimed. (Id.)

9

VARO and OGC argue that the cause of action on this FOIA claim accrued on or

10

about April 1, 2008, 20 business days after OGC acknowledged receipt of the appeal on

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March 4, 2008. (Doc. 21 at 4.)

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C.

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Plaintiff argues that the statute of limitations does not preclude his claims because

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the alleged FOIA violations “should be considered to be a ‘continuing wrong’ and a

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‘continuing violation.’” (Doc. 27 at 3, citing cases from the Sixth, Tenth, and Seventh

16

Circuits.) Plaintiff contends that “[a]s long as Defendants continue to deprive Plaintiff

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access to records, . . . further injury cannot be avoided or the wrong corrected.” (Id.)

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Plaintiff argues that “the misrepresentation and concealment of documents released or

19

provided to others to use in court proceedings to Plaintiff[’s] detriment violates FOIA and

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deprive[s] Plaintiff of his constitution[al] rights.” (Id. at 3-4.)

Discussion

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Defendants respond that Plaintiff’s application of the “continuing violation”

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doctrine, which is an equitable exception to the timely filing requirement, does not apply

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here because a “potential plaintiff in a FOIA action would immediately suspect that he

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has a claim upon the agency’s timely response to the FOIA request, or upon the passage

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of 20 days after making the request or appeal when no response has been forthcoming.”

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(Doc. 31 at 3-4.)

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ascertainable in either circumstance” and so there is no cause to extend the six-year

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limitations period to bring a FOIA action in these three instances. (Id. at 4.)

Defendants argue that this is “a finite deadline, which is easily

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1

The continuing violation doctrine does not apply to Plaintiff’s first three FOIA

2

requests. The cases Plaintiff relies on are not FOIA cases and do not support application

3

of the doctrine here. The first case cited by Plaintiff, Hensley v. City of Columbus, 557

4

F.3d 693, 697 (6th Cir. 2009), involved federal takings and due process claims. The

5

court held that the continuing violations doctrine did not extend the limitations period

6

where the damage was complete at a fixed point in time. The second case, Tiberi v.

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Cigna Corporation, 89 F.3d 1423 (10th Cir. 1996), involved New Mexico contract and

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tort law and noted that the continuing violation doctrine could not be applied where the

9

plaintiff’s injury “is definite and discoverable, and nothing prevented the plaintiff from

10

coming forward to seek redress.” Id. at 1431 (internal citation and quotations omitted).

11

The two Seventh Circuit cases cited by Plaintiff involved an Eighth Amendment medical

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care claim under 42 U.S.C. § 1983 (Heard v. Sheahen, 253 F.3d 316 (7th Cir. 2001)) and

13

a copyright infringement claim (Taylor v. Meirick, 712 F.2d 1112, 1118-19 (7th Cir.

14

1983)).

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requests made between 2002 and 2007 because Plaintiff would know by the expiration of

16

the applicable response date whether he had the documents he sought or not.

Neither case supports application of the doctrine to Plaintiff’s three FOIA

17

In response to Plaintiff’s first FOIA request, VARO provided documents on

18

November 16, 2002. Plaintiff does not say he ever appealed that response. Therefore,

19

the FOIA claim accrued on November 16, 2002, and Plaintiff was obligated to file a

20

lawsuit on that claim by November 16, 2008.

21

In response to Plaintiff’s second FOIA request, VARO provided documents on

22

April 22, 2005. Plaintiff does not say that he appealed this response. Therefore, the

23

FOIA claim accrued on April 22, 2005, and Plaintiff was obligated to file a lawsuit by

24

April 22, 2011.

25

Plaintiff filed his third FOIA request on July 10, 2007. After requesting additional

26

time, VARO provided documents on September 25, 2007. Plaintiff filed an appeal over

27

the denial of certain records around December 20, 2007, and VARO denied the appeal on

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December 28, 2007. Plaintiff filed an appeal to the OGC on February 14, 2008, and

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1

OGC acknowledged receipt of Plaintiff’s appeal on March 4, 2008, assigning it case

2

#13527. There is no indication in Plaintiff’s Complaint that anything more happened

3

until Plaintiff made an inquiry on December 10, 2008 about the status of his appeal.

4

Therefore, Plaintiff constructively exhausted this claim 20 business days after March 4,

5

2008, or April 1, 2008, see Spannaus, 824 F.2d at 58, and Plaintiff was required to file

6

suit on this claim by April 1, 2014. Plaintiff did not file this lawsuit until July 1, 2014.

7

The Court accordingly will dismiss Plaintiff’s claims regarding the FOIA requests

8

he submitted on October 20, 2002, April 13, 2005 and July 10, 2007, as barred by the

9

statute of limitations.

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11

IT IS ORDERED:
(1)

The reference to the Magistrate Judge is withdrawn as to Defendant OIG’s

12

Motion to Dismiss (Doc. 20) and Defendants VARO and OGC’s Partial Motion to

13

Dismiss (Doc. 21).

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15
16

(2)

Defendant OIG’s Motion to Dismiss (Doc. 20) is granted and OIG is

dismissed from this action.
(3)

Defendants VARO and OGC’s Partial Motion to Dismiss (Doc. 21) is

17

granted. Plaintiff’s claims regarding the FOIA requests he submitted on October 20,

18

2002, April 13, 2005 and July 10, 2007 are dismissed.

19

(4)

The remaining claims in this action are against VARO and OGC relating to

20

Plaintiff’s April 26, 2012 FOIA request in Count One and Plaintiff’s May 20, 2013 FOIA

21

request in Count Two.

22

Dated this 27th day of October, 2015.

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