Bettwieser v. Gans et al

Filing 38

MEMORANDUM DECISION AND ORDER RE: PLAINTIFFS MOTION FOR ADDITIONALFINDINGS/RULINGS - IT IS HEREBY ORDERED that Plaintiffs Motion for Additional Findings/Rulings (Docket No. 36 ) is DENIED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

MARTIN BETTWIESER,

Case No.: 1:15-cv-00493-EJL-REB

Plaintiff,

REPORT AND RECOMMENDATION
RE: U.S. POSTAL SERVICE’S
MOTION TO DISMISS

vs.
BILLY GANS, aka WILLIAM GANS and BILLY
GANTZ, KELLY KALBFLEISCH, HERSCHEL
HOWARD, UNITED STATES POSTAL
SERVICE,
Defendants.

(Docket No. 22)
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S MOTION
FOR ADDITIONAL
FINDINGS/RULINGS
(Docket No. 36)

Now pending before the Court are (1) Defendant U.S. Postal Service’s Motion to Dismiss
(Docket No. 22), and (2) Plaintiff’s Motion for Additional Findings/Rulings (Docket No. 36).
Having carefully considered the record and otherwise being fully advised, the undersigned enters
the following Report and Recommendation as to Defendant U.S. Postal Service’s Motion to
Dismiss, and Memorandum Decision and Order as to Plaintiff’s Motion for Additional
Findings/Rulings:
I. BACKGROUND
Plaintiff Martin Bettwieser, a rural letter carrier in the Boise, Idaho Post Office, initiated
this action on October 20, 2015. Plaintiff represents himself pro se. He is in disagreement with
the response from Defendant U.S. Postal Service (“USPS”) to his Freedom of Information Act
(“FOIA”) request. Specifically, he contends:

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 1

That Billy Gans (aka Billy Gantz)[1] was hand delivered a Freedom of Information
Act Request and Privacy Act Request that was hand stamped for delivery and
delivered on July 27, 2015. A 30 day request time was asked for to view and copy
the requested information. No written or oral response was issued or given to the
Plaintiff in that time frame.
The Plaintiff mailed a certified letter to Billy Gantz, clearly stating FOIA Officer on
the face of the envelope on September 03, 2015, with a letter asking if there were any
problems processing the FOIA request and allowing an additional 10 working days
to respond to the request. (Exhibit 1).
The certified letter was delivered to an agent on September 05, 2015. On September
10, 2015, the letter was placed unopened in my work area, endorsed “Refused.” On
that date I asked Billy Gantz if it was he that endorsed the letter and he said he did.
I asked him if he would date it but he refused. I asked him why he refused it and
would not date or acknowledge the question and walked off.
....
Bettwieser has made every effort, to the agency, through the individuals to respond
to his FOIA request. It is not clear whether the individual defendant’s are acting on
there own volition by refusing to respond to the FOIA request, and even going
farther as to deny the grievance process, or if they are acting on behalf of the agency
(Postal Service). Therefore this court can take jurisdiction under the Freedom of
Information Act, specifically U.S.C. Section 552a(g)(1) and 39 CFR 265.7 because
all administrative procedures have been exhausted as being futile. Further more
grievance procedures are even futile with the individuals. . . . .
Compl., ¶¶ V-VII, Claim for Relief, p. 3 (Docket No. 1) (emphasis in original). Accordingly, as
to Defendant USPS itself, Plaintiff requests that “the court compel the agency by order to answer
his FOIA Request and to produce as requested” and “order sanctions and/or an investigation of
the . . . agency and/or those responsible for intentional non-compliance to the FOIA request.” Id.
at Claim for Relief, pp. 3-4.
Defendant USPS seeks dismissal of Plaintiff’s Complaint under FRCP 12(b)(1), arguing
that, like Plaintiff’s other FOIA-related action before this Court, Plaintiff’s claims against it

1

Mr. Gantz is another Defendant in this action and, according to Plaintiff, “is the Station
Manager and FOIA officer at the 5-mile station in Boise, Idaho.” Compl., ¶ II (Docket No. 1).
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 2

should be dismissed here because this Court does not have subject matter jurisdiction over
Plaintiff’s FOIA and Privacy Act claims, given (1) USPS never received a request for records,
and, alternatively, (2) Plaintiff failed to exhaust his administrative remedies in any event. See
generally USPS Mem. in Supp. of MTD, pp. 4-11 (Docket No. 22, Att. 1). Moreover, USPS
moves to dismiss Plaintiff’s Complaint against its employees under FRCP 12(b)(6), arguing that
individual postal service employees cannot be held civilly liable as a matter of law for any
alleged violations of FOIA or the Privacy Act. See id. at pp. 11-15.
II. REPORT/DISCUSSION
A.

USPS’s Motion to Dismiss (Docket No. 22)
At the outset, it is difficult to determine whether Plaintiff’s Complaint is a union-related

grievance or one premised upon a mishandled records request under FOIA and/or the Privacy
Act (or some combination of the two).2 USPS’s Motion to Dismiss speaks to the second of these
two claims and this Report/Memorandum correspondingly follows.
1.

Legal Standards
a.

FRCP 12(b)(1)

Rule 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. “It is
a fundamental precept that federal courts are courts of limited jurisdiction . . . [and] limits upon
federal jurisdiction . . . must be neither disregarded nor evaded.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden of establishing that subject

2

This Court has already dismissed Plaintiff’s claims against Defendant Herschel
Howard, a USPS rural letter carrier who serves in an official union capacity as an Assistant
District Representative in the Salt Lake City District for the National Rural Letter Carriers’
Association – a labor union representing rural letter carrier bargaining unit employees of the
USPS. See Rpt. & Recomm. and Orders (Docket Nos. 27, 34-35).
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 3

matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
“When considering a motion to dismiss for lack of subject matter jurisdiction, the court presumes
the factual allegations of the complaint are true and draws reasonable inferences in favor of the
non-moving party.” Whisnaut v. U.S., 400 F.3d 1177, 1179 (9th Cir. 2005). This tenet that
allegations must be taken as true, however, does not extend to legal conclusions contained in the
complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
b.

FRCP 12(b)(6)

Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the
pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Hence, although a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need
detailed factual allegations,” it must nonetheless set forth “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Id.
When reviewing a complaint under Rule 12(b)(6), all allegations of material fact are
taken as true and construed in the light most favorable to the nonmoving party. See Thompson v.
Davis, 295 F.3d 890, 895 (9th Cir. 2002). “Factual allegations must be enough to raise a right of
relief above the speculative level, on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Bell, 550 U.S. 544, 555. In other words, the complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. See id. at 556. The
plausibility standard is not akin to a “probability requirement,” but it asks for mor than a sheer
possibility that a defendant has acted unlawfully. See id. “Determining whether a complaint

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 4

states a plausible claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 662.
A dismissal without leave to amend is improper unless it is beyond doubt that the
complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737
(9th Cir. 2009). In our Circuit, when considering “dismissal for failure to state a claim, a district
court should grant leave to amend even if no request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by the allegation of other facts.” Cook,
Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990). The
issue is not whether the plaintiff will prevail but whether he “is entitled to offer evidence to
support the claims.” Hydick v. Hunter, 466 F.3d 676, 685 (9th Cir. 2006).
2.

Plaintiff’s Allegations and This Court’s Subject Matter Jurisdiction

USPS challenges this Court’s subject matter jurisdiction over Plaintiff’s FOIA and
Privacy Act claims in two respects. First, USPS argues that it could not have improperly
withheld records under FOIA and the Privacy Act because it never actually received a request
for any such records. See USPS Mem. in Supp. of MTD, pp. 5-8 (Docket No. 22, Att. 1) (“In
this case, the Postal Service has no record of receiving Plaintiff’s alleged request for records,
dated July 27, 2015. To the contrary, the Postal Service declarations clearly establish that the
Postal Service did not receive or log Plaintiff’s request into its FOIA Tracking System.”) (citing
Crum Decl. (Docket No. 22, Att. 3)). Second, USPS argues that Plaintiff’s FOIA and Privacy
Act claims must be dismissed for failure to exhaust administrative remedies. See id. At pp. 9-11
(“Here, there is no evidence from which to conclude that Plaintiff’s alleged request met the
requirements of [USPS’s FOIA regulations]. . . . . Because the Plaintiff never properly initiated

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 5

a FOIA request, his Complaint is subject to dismissal for failure to exhaust administrative
remedies.”). Neither argument, however, prevails as a matter of law and this procedural stage of
the litigation.
Preliminarily, as a general rule, the trial court may not consider any evidence contained
outside the pleadings without converting the motion to dismiss into one for summary judgment.
See Fed. R. Civ. P. 12(d); see also United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).
There is an exception, in that the court “may, however, consider certain materials – documents
attached to the complaint, documents incorporated by reference in the complaint, or matters of
judicial notice – without converting the motion to dismiss into a motion for summary judgment.”
Id. at 908 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13
F.3d 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[2]
(3d ed. 1999)). And, the court may consider evidence upon which the complaint “necessarily
relies” if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s
claim; and (3) no party questions the authenticity of the document. Branch v. Tunnell, 14 F.3d
449, 453-54 (9th Cir. 1994). Such documents may be treated as “part of the complaint, and thus
[the court] may assume that its contents are true for purposes of a motion to dismiss . . . .”
Ritchie, 342 F.3d at 908.
Here, USPS tethers its arguments to matters beyond the pleadings – namely, declarations
from USPS employees, testifying about the existence of any actual FOIA request and, relatedly,
the specifics surrounding any such request. See generally Gans & Crum Decls. (Docket No. 22,
Atts. 2-3). Likewise, Plaintiff submits his own declarations on these subjects. See generally
Gellert & Bettwieser Decls. (Docket No. 29, Att. 1). Accordingly, because the Court must

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 6

consider matters outside the pleadings (and because the nature of such matters do not neatly fit
within the exception to the general rule), USPS’s Motion to Dismiss will be treated as a motion
for summary judgment. In this light, the Court “must determine, viewing the evidence in the
light most favorable to the nonmoving party and drawing all justifiable inferences in its favor,
whether there are any genuine issues of material fact and whether the moving party is entitled to
judgment as a matter of law.” Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007).
a.

The Existence of an Actual FOIA Request

With the summary judgment standard a template to USPS’s arguments, a dispute of
material fact exists surrounding the existence of Plaintiff’s alleged FOIA request and, thus,
precludes dismissal premised upon USPS’s first subject matter jurisdiction-related argument.
On the one hand, USPS claims that there never was a July 27, 2015 FOIA request from
Plaintiff – only a union grievance. For example, Mr. Gans, the Station Manager for USPS’s Five
Mile Station, testifies in relevant part:
Over the years, Mr. Bettwieser has filed numerous grievances under the Union
Contract and complained about the Post Service’s management of the Five Mile
Station. On or about July 27, 2015, following another incident where Mr. Bettwieser
believed that Postal Management at the Five Mile Station was not following the
Union Contract, Mr. Bettwieser handed me a handwritten piece of paper. The paper
did not bear the caption “Freedom of Information Act Request” (or other comparable
verbiage), that I can remember. Neither did I interpret, believe, or understand at that
time that Mr. Bettwieser was attempting to submit a request for records under the
FOIA and/or Privacy Act. Instead, I reasonably believed that he was attempting to
initiate another grievance under the Union Contract, but was doing so improperly
because he was circumventing the first step of the grievance process, which requires
that he request something from his direct supervisor, not me. . . . .
I did not retain a copy of the handwritten note referenced . . . above, but advised Mr.
Bettwieser that if he had issues with Postal Service management, he needed to
submit a grievance to and/or work through his Union Steward. The morning
supervisor at the Five Mile Station has also repeatedly told Mr. Bettwieser to go
through the channels as described in the Union Contract. At that time (and in the
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 7

cases of his prior grievances), I asked Mr. Bettwieser if he wanted to talk with the
assigned Union Steward for the Five Mile Station. To the best of my recollection,
Mr. Bettwieser declined my offer. He also declined to pursue his grievance with the
Union Steward.
I declined to accept or open a subsequent letter for Mr. Bettwieser, postmarked
September 3, 2015 [(envelope attached as exhibit to Complaint)], because I believed
that the letter was either an attempt to continue the grievance that Mr. Bettwieser
improperly initiated on or about July 27, 2015, or yet another example of Mr.
Bettwieser improperly attempting to circumvent the grievance process that is spelled
out in the Union Contract.
Gans Decl., ¶¶ 6-8 (Docket No. 22, Att. 2). Similarly, Ms. Crump, a USPS Records Request
Liaison, testifies in relevant part:
In my capacity as the U.S. Postal Service’s Records Request Liaison, I am
responsible for monitoring and tracking records requests using the USPS FOIA
Tracking System on a daily basis. Through this database, I can track all internal
actions taken for a particular FOIA or Privacy Act request that is entered into the
database.
I can also determine when the Postal Service received a request and search for
requests based on a requestor’s name.
After learning of the above-captioned lawsuit, I searched the USPS FOIA Tracking
System database for records requests submitted to the U.S. Postal Service by Martin
Bettwieser.
Based on my search, the U.S. Postal Service has no record of receiving a request
from Mr. Bettwieser at any time between July 1, 2015 and the present date.
Crump Decl., ¶¶ 8-11 (Docket No. 22, Att. 3).
Yet, on the other hand, such claims conflict with Plaintiff’s own allegations supporting
the notion that he did, in fact, make a FOIA request to USPS – those contained within his
Complaint as well as his declaration. See supra (quoting Compl., ¶¶ V-VII, Claim for Relief, p.
3 (Docket No. 1)); see also Bettwieser Decl., ¶¶ 2-3 (Docket No. 29, Att. 1) (“That I drafted a
Freedom of Information Act/Privacy Act Request addressed to Billy Gantz – FOIA Officer on
July 25, 2015 after I verbally requested some information from Kelly Kalbfleisch and Ken Stites,

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 8

supervisors at the 5-mile station in Boise, Idaho . . . . The original FOIA-Privacy Act Request
was hand stamped with a copy by Mark Gellert on July 27, 2015 and was hand delivered to Billy
Gans by him as I looked on.”). These admittedly self-serving allegations do not stand alone,
however; indeed, Plaintiff attempts corroboration by another USPS employee and Plaintiff’s coworker, Mark Gellert. See Gellert Decl., ¶ 3 (Docket No. 29, Att. 1) (“On July 27, 2015 Martin
came to me to have me rubber stamp 2 items, an original and copy[3] of a Freedom of Information
Act Request addressed to Billy Gans. The request was one page and open for viewing of the
contents of the request. After doing so I hand delivered the request to Billy Gans in his office as
Martin looked on.”).
From this, an issue of material fact emerges. When viewing the evidence in favor of
Plaintiff, there is an open question as to whether Plaintiff either (1) did not make a FOIA request
(setting aside for the moment any issues surrounding USPS’s claim that Plaintiff failed to
exhaust his administrative remedies), or that (2) USPS never received that request. It is therefore
recommended that USPS’s Motion to Dismiss be denied in this respect.4

3

For some reason, Plaintiff includes the subsequently-delivered September 3, 2015 letter
(still sealed in an envelope) as an exhibit to his Complaint, but does not include this referenced
“copy” of the alleged July 27, 2015 FOIA request as an exhibit to his Complaint or any other
part of the record – at least not as far as the Court can tell from its own review of the record.
4

Though recommending against dismissal at this time, the undersigned is aware that, in
at least one other case within this District, Plaintiff was noted as being “well on his way to
establishing an ‘abusive and lengthy history’ of vexatious litigation,” warning Plaintiff “that
sanctions, including requiring [him] to retain an attorney or seek leave of court before filing
further employment related lawsuits, may eventually be necessary if his present trend continues.”
Bettwieser v. NLRB, Region 27, Case No. 1:08-cv-00078-BLW, Docket No. 60, p. 12 (D. Idaho
Dec. 15, 2008). With this in mind, it would seem that an efficient avenue for resolving things in
the short term is for Plaintiff to simply re-submit his alleged FOIA/Privacy Act request to USPS,
beginning the process anew for everyone’s benefit. See USPS Mem. in Supp. of MTD, p. 8, n.8
(Docket No. 22, Att. 1) (inviting Plaintiff to re-submit request in first instance and, depending on
result, filing another FOIA-related lawsuit against USPS).
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 9

b.

Plaintiff’s Exhaustion of Administrative Remedies

USPS goes on to contend that, even assuming the existence of Plaintiff’s FOIA request,
Plaintiff failed to comply with USPS’s FOIA regulations – in short, that Plaintiff failed to
exhaust his administrative remedies. See USPS Mem. in Supp. of MTD, p. 9 (Docket No. 22,
Att. 1) (“Where a FOIA requester fails to submit a request in accordance with the agency’s
published regulations, the FOIA claim is subject to dismissal for failure to exhaust administrative
remedies.”). In this regard, USPS relies primarily upon 39 C.F.R. § 265.7, which provides in
relevant part:
(a) Submission of requests –
(1) Form and content of request. To permit expeditious handling and timely
response in accordance with the provisions of this part, a request to inspect
or to obtain a copy of an identifiable Postal Service record must be in writing
and bear the caption “Freedom of Information Act Request” or otherwise be
clearly and prominently identified as a request for records pursuant to the
Freedom of Information Act. A request must be clearly and prominently
identified as such on the envelope or other cover. Requests for records,
submitted by the public that are not labeled as Freedom of Information Act
requests will be handled as FOIA requests when received by the appropriate
Requester Service Center in accordance with paragraph (b) of this section,
but they may be delayed in reaching the appropriate Requester Service
Center. A Freedom of Information Act request must identify the record
sought as completely as possible, by name, description, or subject matter, and
be sufficient to permit the custodian to locate it with a reasonable effort. . .
..
(2) To whom submitted. A request must be submitted to the appropriate
Freedom of Information Act (FOIA) Requester Service Center (RSC). If the
FOIA is not known, an inquiry should be directed to the FOIA Requester
Service Center, Privacy and Records Office, U.S. Postal Service, 475
L’Enfant Plaza SW., Washington, DC 20260, telephone [phone].
The FOIA RSC will either process the request or refer the request to the
appropriate component or records custodians. The FOIA RSC will advise the
requester of any such referral. A request that is not initially submitted to the
appropriate FOIA RSC will be deemed to have been received by the Postal
Service for purposes of computing the time for response in accordance with
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 10

paragraph (b) of this section at the time that it is actually received by the
appropriate FOIA RSC or at the time the request is referred to the appropriate
records custodians by a FOIA RSC, but in any case a request will be deemed
to have been received no later than 10 days after the request is first received
by a FOIA RSC. . . . .
39 C.F.R. § 265.7(a)(1-2). In turn, USPS argues that “there is no evidence from which to
conclude that Plaintiff’s alleged request met the requirements of 39 C.F.R. § 265.7(a)(1) because
(1) Plaintiff has not attached a copy of the request to his Complaint or allege that the request
bore the caption “Freedom of Information Act Request” (or other comparable verbiage); (2)
Plaintiff has not described the records that were the subject of his alleged request; and (3)
Plaintiff did not submit a request to the appropriate Requester Service Center in St. Louis,
Missouri. USPS Mem. in Supp. of MTD, pp. 10-11 (Docket No. 22, Att. 1). These arguments
are not convincing.
As to those arguments surrounding the particulars of Plaintiff’s alleged FOIA/Privacy
Act request (language used and records sought), they necessarily dovetail with those related to
whether Plaintiff made a FOIA request at all and implicate, therefore, the reasons that call for
denial of USPS’s Motion to Dismiss concerning the existence of Plaintiff’s FOIA request. See
supra. The issue of whether the request was sufficiently made is similarly fraught with questions
of material fact that, when construed in Plaintiff’s favor, preclude summary judgment on these
other, more specific bases as well.5
Finally, as to the contention that Plaintiff did not send his alleged FOIA request to the
proper Requester Service Center, 39 C.F.R. § 265.7(a)(2) appears to contemplate such a
circumstance (and permit a response) – at least insofar as computing response times. See 39
5

Notably, Plaintiff’s September 3, 2015 follow-up letter to Mr. Gans was unequivocally
FOIA related – at least on its face. See Ex. to Compl. (Docket No. 1, Att. 1) (addressed to Billy
Gantz as “FOIA Officer”).
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 11

C.F.R. § 265.7(a)(2) (“A request that is not initially submitted to the appropriate FOIA RSC will
be deemed to have been received by the Postal Service for purposes of computing the time for
response in accordance with . . . .”) (emphasis added). But more importantly, Plaintiff says he
was directed to submit his alleged FOIA request to Mr. Gans, and an altogether separate FOIA
request of his was processed using the same steps. See Bettwieser Decl., ¶¶ 2 & 4 (Docket No.
29, Att. 1) (“That I drafted a Freedom of Information Act/Privacy Act Request addressed to Billy
Gantz – FOIA Officer on July 25, 2015 after I verbally requested some information from Kelly
Kalbfleisch and Ken Stites, supervisors at the 5-mile station in Boise, Idaho and was instructed
by the supervisors to formally request the information from Billy Gantz the station manager. . . .
I have drafted a FOIA/Privacy Act previously in the past and hand delivered it to the station
manager and they timely responded as well as supplied information to the given request.”)
(emphasis added).
Again, in a summary judgment context, such circumstances prevent this Court from
finding as a matter of law that Plaintiff failed to exhaust his administrative remedies or that such
an argument cannot be viably defended, with such matters left to be resolved by the fact-finder.
It is therefore recommended that USPS’s Motion to Dismiss be denied in this respect.
3.

USPS Employee Liability Under FOIA and the Privacy Act

In addition to the USPS, Plaintiff asserts claims against certain USPS employees. To the
extent Plaintiff is attempting to hold these individuals liable for alleged violations of his rights
under FOIA and/or the Privacy Act, USPS moves to dismiss those claims, arguing that federal
agencies are the only proper party defendants for such claims. See USPS Mem. in Supp. of
MTD, pp. 11-12 (Docket No. 22, Att. 1). The undersigned agrees. See 5 U.S.C. § 552(a)(4)(B)

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 12

(granting district courts “jurisdiction to enjoin the agency from withholding agency records
improperly withheld from complainant”) (emphasis added); see also Drake v. Obama, 664 F.3d
774, 786 (9th Cir. 2011) (“We agree with the District Court that FOIA does not apply to any of
the Defendants because they are all individuals, not agencies.”); Unt v. Aerospace Corp., 765
F.2d 1440, 1447 (9th Cir. 1985) (“The private right of civil action created by the [Privacy] Act is
specifically limited to actions against agencies of the United States Government. The civil
remedy provisions of the statute do not apply against private individuals . . . .”); Nelson v. United
States, 2015 WL 6501243, *4 (M.D. Pa. 2015) (“FOIA creates disclosure obligations for federal
agencies, but does not impose individual liability on government personnel. Therefore, courts
have consistently held that individual governmental officials are not properly named as
defendants in FOIA lawsuits.”); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir.
2006) (“[T]he district court properly dismissed the named individual defendants because no
cause of action exists that would entitle appellant to relief from them under the Privacy Act or
FOIA. Both statutes concern the obligations of agencies as distinct from individual employees
in those agencies.”).6 It is therefore recommended that USPS’s Motion to Dismiss be granted in
this respect.
B.

Plaintiff’s Motion for Additional Findings/Rulings (Docket No. 36)
On May 2, 2016, the undersigned issued (1) a Report and Recommendation concerning

Defendant Herschel Howard’s Motion to Dismiss, and (2) a Memorandum Decision and Order

6

Plaintiff’s briefing suggests the possibility of a Bivens action as to the USPS
employees. See Opp. to MTD, pp. 8-9 (Docket No. 29). However, such an argument is likewise
without merit in the context of this action. See Lamb v. Millennium Challenge Corp., 2017 WL
74690, *7 (D.D.C. 2017) (“ . . . both the Privacy Act and FOIA constitute the type of
comprehensive remedial scheme that precludes the creation of a Bivens remedy.”).
REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 13

concerning Plaintiff’s Motion to Strike. See 5/2/16 Order & Rpt. and Recomm. (Docket Nos. 26
& 27). To this end, the undersigned recommended that Defendant Howard’s Motion to Dismiss
be granted because (1) Plaintiff did not sufficiently state a claim pursuant to FRCP 12(b)(6), and
(2) this Court does not have subject matter jurisdiction over Plaintiff’s claims against Defendant
Howard. See id. at pp. 5-8. Moreover, the undersigned ordered that Plaintiff’s Motion to Strike
be denied because Defendant Howard’s counsel complied with Local Civil Rule 5.1(j). See id. at
pp. 8-10.
Thereafter, Plaintiff filed a Motion to Reconsider. See Mot. to Recon. (Docket No. 28).
It was apparent then that Plaintiff was seeking reconsideration of the Report and
Recommendation concerning Defendant Howard’s Motion to Dismiss, not the Memorandum
Decision and Order concerning Plaintiff’s Motion to Strike. See 8/2/16 Order, p. 2 (Docket No.
34). Now, through his Motion for Additional Findings/Rulings, Plaintiff claims to have moved
for reconsideration of the Court’s resolution of his earlier Motion to Strike (in addition to its
resolution of Defendant Howard’s Motion to Dismiss). See Mot. for Add’l Findings/Rulings, p.
2 (Docket No. 36) (“Bettwieser recognized that he created some ambiguity in his motion to
reconsider but seeks this court’s attention now for correction and additional findings for
reconsideration on the Memorandum Decision on the Motion to Strike.”).
As previously stated, FRCP 59 does not give litigants a “second bite at the apple.” Weeks
v. Bayer, 246 F.3d 1231, 1236 (9th Cir. 2001). Motions to reconsider are requests for an
“extraordinary remedy, to be used sparingly in the interests of finality and conservation of
judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). The high bar that
movants must overcome to prevail on a motion for reconsideration reflects the courts “concerns

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 14

for preserving dwindling resources an promoting judicial efficiency.” Costello v. United States
Gov’t, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991).
Reconsideration of a court’s prior ruling is appropriate “if (1) the district court is
presented with newly discovered evidence, (2) the district court committed clear error or made
an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling
law.” S.E.C. v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th Cir. 2010) (citation
omitted). If the motion to reconsider does not fall within one of these categories, it must be
denied. Here, there is no basis to depart from the undersigned’s denial of Plaintiff’s Motion to
Strike. To be clear, the manner in which Defendant Howard’s counsel signed documents filed
with this Court complies with this District’s Local Civil Rules. It is therefore ordered that
Plaintiff’s Motion for Additional Findings/Rulings is denied.
III. RECOMMENDATION/ORDER
Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendant USPS’s
Motion to Dismiss (Docket No. 22) be DENIED, in part, and GRANTED, in part, as follows:
1.

The Court will not dismiss Plaintiff’s Complaint against USPS for lack of subject

matter jurisdiction. In this respect, USPS’s Motion to Dismiss is DENIED.
2.

Plaintiff’s FOIA and Privacy Act claims against individual USPS employees are

dismissed. In this respect, USPS’s Motion to Dismiss is GRANTED.
Pursuant to District of Idaho Local Civil Rule 72.1(b)(2), a party objecting to a
Magistrate Judge’s recommended disposition “must serve and file specific, written objections,
not to exceed twenty pages . . . within fourteen (14) days. . ., unless the magistrate or district
judge sets a different time period.” Additionally, the other party “may serve and file a response,

REPORT AND RECOMMENDATION/MEMORANDUM DECISION AND ORDER - 15

not to exceed ten pages, to another party’s objections within fourteen (14) days after being
served with a copy thereof.”
Additionally, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s Motion
for Additional Findings/Rulings (Docket No. 36) is DENIED.
DATED: February 1, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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