Vietnam Veterans of America Connecticut Greater Hartford Chapter 120 et al v. Defense et al

Filing 40

ORDER: The Motion to Dismiss (Doc. No. 11 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 03/28/2014. (Bowers, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
VIETNAM VETERANS OF AMERICA
:
CONNECTICUT GREATER HARTFORD :
CHAPTER 120, VIETNAM
:
VETERANS OF AMERICA, VIETNAM :
VETERANS OF AMERICA SOUTHERN :
CONNECTICUT CHAPTER 251,
:
VIETNAM VETERANS OF AMERICA
:
CONNECTICUT CHAPTER 270, and :
VIETNAM VETERANS OF AMERICA
:
CONNECTICUT STATE COUNCIL
:
:
Plaintiffs,
:
:
v.
:
:
UNITED STATES DEPARTMENT OF
:
DEFENSE and DEPARTMENT OF
:
HOMELAND SECURITY,
:
:
Defendants.
:
:
------------------------------x

CASE NO. 3:11CV2009(AWT)

RULING ON MOTION TO DISMISS
This action is brought by the Vietnam Veterans of America,
Vietnam Veterans of America Connecticut Greater Hartford Chapter
120, Vietnam Veterans of America Southern Connecticut Chapter
251, Vietnam Veterans of America Connecticut Chapter 270 and
Vietnam Veterans of America Connecticut State Council against
defendants United States Department of Defense (the “DoD”), its
components Department of the Army, Department of the Navy,
Department of the Air Force, the United States Marine Corps, the
National Guard Bureau, the Army National Guard and the Air

-1-

National Guard, and the United States Coast Guard, a component
of the Department of Homeland Security (the “DHS”), alleging
violations of the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552.
The Complaint seeks declaratory and injunctive relief
compelling the disclosure and release of agency records by the
defendants.

Specifically, the plaintiffs request the release of

records beginning in October 1, 2001 regarding the defendants‟
use of personality disorder discharges when separating service
members from the armed forces.

The defendants have moved to

dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure.

For the reasons set forth

below, the motion is being denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
“The complaint, which [the court] must accept as true for

purposes of testing its sufficiency, alleges the following
circumstances.”

Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.

1997).
The FOIA requests at issue in this action are dated April
4, 2011.

However, there are three previous groups of FOIA

requests that were sent to the defendants by the plaintiffs that
are the subject of another lawsuit.

Vietnam Veterans of Am. S.

Conn. Chapter 251 v. Dep‟t of Def., No. 3:10-cv-1972(AWT) (D.
Conn.) (hereinafter “VVA I”).

The VVA I FOIA requests were sent

-2-

to the relevant agencies in October 2010, February 2011 and
March 2011.
On April 4, 2011, the plaintiffs submitted, via email
and/or fax, FOIA requests to the United States Coast Guard (a
DHS component), the DoD, and seven DoD components: 1) the
Department of the Army, 2) the Department of the Navy, 3) the
Department of the Air Force, 4) the United States Marine Corps,
5) the National Guard Bureau, 6) the Army National Guard and 7)
the Air National Guard.

The requested records included records

related to whether the DoD and the Coast Guard abided by their
regulations and procedures in discharging service members for
reasons of personality disorder, adjustment disorder and
readjustment disorder since October 1, 2001, as well as other
records related to each discharged service member.

Furthermore,

in the DoD request, the plaintiffs requested records related to
a DoD report to Congress concerning discharges based on
personality disorder diagnoses.

The request letter stated that

the records requested were the subject of three previous FOIA
requests and also the subject of the pending litigation in VVA
I.

Finally, the request indicated that this disclosure is

meaningful because the public remains unaware of whether the DoD
has misused personality disorder discharges, how the DoD polices
its own discharge policies in practice, and whether disabled

-3-

veterans are being unjustly denied benefits they are due by
virtue of their service in the armed forces.
While the plaintiffs maintain that the records sought by
the April 4, 2011 request fell within the scope of previous
requests, the plaintiffs state that the defendants have taken a
contrary position.

The plaintiffs explain that they filed the

April 4, 2011 FOIA requests to avoid unnecessary litigation.
Moreover, the plaintiffs stated in their request letters that
the purpose of the new requests was to “moot out the objection
of counsel for Defendants” in VVA I that the previous FOIA
requests did not encompass individual service members‟ records.
(See Compl. (Doc. No. 1) Exs. A, B).
In a letter dated April 13, 2011, the Army responded to the
plaintiffs‟ request stating that it had referred the requests to
the offices most likely to have responsive records.

Likewise,

in a letter dated April 22, 2011, the DoD responded to the
requests stating that based on “discussions with Defendants‟
Counsel [Benjamin Berwick], Defendants understand that you are
willing to postpone searches for these records and discussions
regarding an assessment of fees until after you review the
documents released in [VVA I], which is scheduled for May 6,
2011.” (Defs.‟ Mot. to Dismiss (Doc. No. 11) Ex. A).
Additionally, the DoD stated in its response letter that there
was an ambiguity in the FOIA request letter as to whether the

-4-

plaintiffs actually sought to have the April 4, 2011 treated
separately from the three previous groups of requests.
The May 6, 2011 document release in connection with the VVA
I litigation occurred as scheduled.

“After analyzing that

production, on June 30, 2011 Plaintiffs informed Attorney
Berwick that it was insufficient and that they still sought
individual service member records.”

(Pls.‟ Mem. Opp. Mot. to

Dismiss (Doc. No. 17) at 5).

The defendants do not dispute that

this communication occurred.

Instead, the defendants contend

that the plaintiffs never contacted the agencies to convey that
the plaintiffs wished to have their April 4, 2011 request
processed.
The plaintiffs assert that to date the DoD, Army, Navy, Air
Force, Marines, National Guard Bureau, Army National Guard, and
Air National Guard have not provided the records sought by the
April 4, 2011 FOIA request.
The Complaint alleges two causes of action: 1) that the DoD
and the DHS failed to disclose and release records responsive to
the plaintiffs‟ request and 2) that the DoD and the DHS failed
to affirmatively disclose records responsive to the plaintiffs‟
request.

The Complaint also alleges that the plaintiffs

exhausted the applicable administrative remedies concerning the
FOIA request.

The defendants have moved to dismiss the

Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal

-5-

Rules of Civil Procedure, arguing that the plaintiffs failed to
exhaust their administrative remedies before filing this action
and their failure to exhaust is not excused, but the case was
subsequently dismissed with respect to the DHS, and therefore
the Coast Guard, based a stipulation between it and the parties.
The remaining defendants are the DoD and the seven DoD
components.
II.

LEGAL STANDARD
A claim is properly dismissed for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) when the court lacks
the statutory or constitutional power to adjudicate the claim.
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187
(2d Cir. 1996).

On a Rule 12(b)(1) motion to dismiss, the party

asserting subject matter jurisdiction “bears the burden of
proving subject matter jurisdiction by a preponderance of the
evidence.”

Aurechione v. Schoolman Transp. Sys., Inc., 426 F.3d

635, 638 (2d Cir. 2005).

When reviewing a motion to dismiss for

lack of subject matter jurisdiction, the court may consider
evidence outside the pleadings.

See Makarova v. United States,

201 F.3d 110, 113 (2d Cir. 2000).
When deciding a motion to dismiss under Rule 12(b)(6), the
court must accept as true all factual allegations in the
complaint and must draw inferences in a light most favorable to
the plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

-6-

Although a complaint “does not need detailed factual
allegations, a plaintiff‟s obligation to provide the „grounds‟
of his „entitle[ment] to relief‟ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atlantic Corp. v. Twombly,

550 U.S. 550, 555 (2007) (citing Papasan v. Allain, 478 U.S.
265, 286 (1986) (on a motion to dismiss, courts “are not bound
to accept as true a legal conclusion couched as a factual
allegation”)).

“Nor does a complaint suffice if it tenders

naked assertions devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 557 (internal quotation marks omitted)).

“Factual

allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all allegations in the
complaint are true (even if doubtful in fact).”
U.S. at 555 (citations omitted).

Twombly, 550

However, the plaintiff must

plead “only enough facts to state a claim to relief that is
plausible on its face.”

Id. at 570.

“The function of a motion

to dismiss is „merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which might
be offered in support thereof.‟”

Mytych v. May Dept. Store Co.,

34 F. Supp. 2d 130, 131 (D. Conn. 1999) (quoting Ryder Energy
Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779
(2d Cir. 1984)).

“The issue on a motion to dismiss is not

-7-

whether the plaintiff will prevail, but whether the plaintiff is
entitled to offer evidence to support his claims.”

United

States v. Yale New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn.
1990) (citing Scheuer, 416 U.S. at 232).
In its review of a motion to dismiss for failure to state a
claim, the court may consider “only the facts alleged in the
pleadings, documents attached as exhibits or incorporated by
reference in the pleadings and matters of which judicial notice
may be taken.”

Samuels v. Air Transp. Local 504, 992 F.2d 12,

15 (2d Cir. 1993).
III. DISCUSSION
A.

Subject Matter Jurisdiction

As an initial matter, it is unsettled in this Circuit
whether failure to exhaust administrative remedies under FOIA
deprives a court of subject matter jurisdiction.

Some courts

have concluded that failure to exhaust is a prudential
consideration, rather than a jurisdictional prerequisite, and
thus a court may consider the merits of a case in the absence of
exhaustion.

See, e.g., Wilbur v. C.I.A., 355 F.3d 675, 677

(D.C. Cir. 2004) (“[E]xhaustion is a prudential consideration
rather than a jurisdictional prerequisite . . . .”); Hidalgo v.
F.B.I., 344 F.3d 1256, 1258 (D.C. Cir. 2003) (“[T]he exhaustion
requirement is not jurisdictional because the FOIA does not
unequivocally make it so.”); Kishore v. U.S. Dep‟t of Justice,

-8-

575 F. Supp. 2d 243, 252 (D.D.C. 2008) (“Although a FOIA
requester is required to exhaust administrative remedies prior
to seeking judicial review, his failure to do so does not
deprive the Court of subject matter jurisdiction.”); Dinsio v.
F.B.I., 445 F. Supp. 2d 305, 309 (W.D.N.Y. 2006) (“In the FOIA
context, the exhaustion requirement is not jurisdictional, but
is a jurisprudential doctrine that precludes judicial review if
the purposes of exhaustion and the particular administrative
scheme support such a bar.” (internal quotation marks omitted)).
Other courts, however, have held that exhaustion is a
prerequisite to subject matter jurisdiction, and those courts
have granted motions to dismiss under Federal Rule of Civil
Procedure 12(b)(1) where the plaintiff failed to exhaust his or
her administrative remedies.

See, e.g., Trenerry v. I.R.S., 78

F.3d 598, *1 (10th Cir. 1996) (“[T]he district court lacked
subject matter jurisdiction over this [FOIA] action where
plaintiff has failed to exhaust her administrative remedies.”);
Voinche v. F.B.I., 999 F.2d 962, 964 (5th Cir. 1993)
(“[J]udicial review of the adequacy of the [agency‟s] response
is precluded by [the plaintiff‟s] failure to seek administrative
review . . . .”); In re Steele, 799 F.2d 461, 465-66 (9th Cir.
1986) (“Exhaustion of a parties‟ administrative remedies is
required under the FOIA before that party can seek judicial
review. . . .

Where no attempt to comply fully with agency

-9-

procedures has been made, the courts will assert their lack of
jurisdiction under the exhaustion doctrine.” (internal citations
omitted)); McMillan v. Togus Reg‟l Office, Dep‟t of Veterans
Affairs, No. 03–CV–1074, 2003 WL 23185665, at *1 (E.D.N.Y. Nov.
18, 2003) (“Plaintiff has failed to exhaust his administrative
remedies under FOIA.

He is precluded from seeking the

information through the courts.

Subject matter jurisdiction is

lacking.” (internal citation omitted)).
However, under the circumstances presented by this case the
court does not need to decide whether exhaustion of
administrative remedies is jurisdictional because here the
plaintiffs were not required to exhaust their administrative
remedies.
B.

Exhaustion of Administrative Remedies

Congress enacted FOIA “to promote honest and open
government and to assure the existence of an informed citizenry
to hold the governors accountable to the governed.”

Grand

Central P‟Ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999)
(internal quotation marks omitted).

“The statute was intended

to advance a general philosophy of full agency disclosure.”
(internal quotation marks omitted).
FOIA requires that agency records be made publicly
available upon receiving a request that “reasonably describes
such records and . . . is made in accordance with published

-10-

Id.

rules stating the time, place, fees (if any), and procedures to
be followed.”

5 U.S.C. § 552(a)(3).

After receiving such a

request, the agency shall “determine within 20 days . . .
whether to comply with such request and shall immediately notify
the person making such request of such determination and the
reasons therefor, and of the right of such person to appeal to
the head of the agency any adverse determination.”

5 U.S.C.

§ 552(a)(6)(A)(i).
If a request is denied or results in an adverse
determination, the requester has the right to appeal the
decision to the head of the agency.
§ 552(a)(6)(A)(i).

See 5 U.S.C.

“[I]ndividuals are required to exhaust this

administrative remedy before filing suit.”
2d at 309.

Dinsio, 445 F. Supp.

The exhaustion doctrine exists to prevent premature

interference with agency process, allowing agencies to function
more efficiently as they correct their own mistakes, affording
“the parties and the courts the benefit of its experience and
expertise,” and providing “a record which is adequate for
judicial review.”

Weinberger v. Salfi, 422 U.S. 749, 765

(1975).
“[A] plaintiff may be deemed to have constructively
exhausted his remedies if the agency fails to make a timely
response to the initial request.”
309.

Dinsio, 445 F. Supp. 2d at

The 20-day “constructive exhaustion under 5 U.S.C.

-11-

§ 552(a)(6)(C) allows immediate recourse to the courts to compel
the agency‟s response to a FOIA request.

But once the agency

responds to the FOIA request, the requester must exhaust his
administrative remedies before seeking judicial review.”
Oglesby v. U.S. Dep‟t of Army, 920 F.2d 57, 63 (D.C. Cir. 1990);
see also Pineiro v. Pension Benefit Guar. Corp., No. 96 Civ.
7392, 1997 WL 739581, at *13 (S.D.N.Y. Nov. 26, 1997) (“[S]o
long as the agency to which an applicant has requested documents
under the FOIA has responded to that request, the applicant must
exhaust all administrative remedies before seeking judicial
review of the agency action or inaction.”).
Not just any response from the agency will trigger the
requirement that the requester exhaust his or her administrative
remedies.

Interpreting the requirements of 5 U.S.C.

§ 552(a)(6)(A), the D.C. Circuit held:
A response is sufficient for purposes of requiring an
administrative appeal if it includes: the agency‟s
determination of whether or not to comply with the
request; the reasons for its decision; and notice of
the right of the requester to appeal to the head of
the agency if the initial agency decision is adverse.
Oglesby v. U.S. Dep‟t of Army, 920 F.2d 57, 65 (D.C. Cir. 1990).
Absent “unusual circumstances,” an agency must make a final
determination regarding whether it will comply with the request
within 20 days of its receipt.

5 U.S.C. § 552(a)(6)(B).

This

20-day period may be tolled, however, if the agency requests

-12-

more information from the requester or communicates with the
requester to clarify issues regarding fee assessment.
5 U.S.C. § 552(a)(6)(A)(ii).

See

“[T]he agency‟s receipt of the

requester‟s response to the agency‟s request for information or
clarification ends the tolling period.”
§ 552(a)(6)(A)(ii)(II).

5 U.S.C.

Based on the information received, the

agency must then make a final determination within the 20-day
statutory period.

See 5 U.S.C. § 552(a)(6)(A)(ii).

While

“[i]nterim responses acknowledging receipt of the request,
negotiations with the requester concerning the scope of the
request, the response timeframe, and fee agreements are
encouraged . . . such actions do not constitute a final response
determination pursuant to the FOIA.”

32 C.F.R. § 286.4(d)(1).

Here, the DoD‟s letter to the plaintiffs on April 22, 2011
did not constitute a determination which the plaintiffs were
required to appeal in order to exhaust their administrative
remedies because it was not a final determination.

First, the

letter did not state whether the DoD would comply with the
request.

Instead, it stated that fulfilling the request would

“present a great burden on the Department‟s resources, would
require significant time to process and release, and would
require significant fees be paid for the extensive search for
these records.”

(Defs.‟ Mot. to Dismiss Ex. A).

While the

letter seems to indicate that the DoD might be willing to

-13-

release certain of the requested documents in the future, it did
not provide a final determination of the issue.

Second, the

letter did not advise the plaintiffs of their right to appeal.
In addition, the letter does not request any information
from the plaintiffs so as to toll the 20-day statutory period.
To the extent the letter is construed to request that the
plaintiffs respond after they reviewed the released documents,
such a request is not contemplated by the statute.

The statute

only provides for tolling the statutory period if the agency
requests more information from the requester or communicates
with the requester to clarify issues regarding fee assessment.
See 5 U.S.C. § 552(a)(6)(A)(ii).

Therefore, the statutory

period in which the DoD was required to make a final
determination was not tolled by the April 22, 2011 letter.
Moreover, even if the letter had tolled the statutory
period until the plaintiffs responded, when the plaintiffs
informed Berwick on June 30, 2011 that they still sought the
individual service member records, the DoD was then required to
respond and failed to do so within the 20-day period.
Because the DoD failed to make a final determination within
the statutory 20-day period, the plaintiffs were not required to
appeal.

Therefore, the plaintiffs did not fail to exhaust

administrative remedies prior to filing the complaint in this
action.

-14-

IV.

CONCLUSION
For the reasons set forth above, Defendants‟ Motion to

Dismiss (Doc. No. 11) is hereby DENIED.
It is so ordered.
Signed this 28th day of March, 2014 at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

-15-