Gray v. Washington Metropolitan Area Transit Authority
Filing
11
MEMORANDUM OPINION (c/m to Plaintiff 2/8/17 sat). Signed by Judge Deborah K. Chasanow on 2/8/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JIM GRAY
:
v.
:
Civil Action No. DKC 16-1792
:
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
:
MEMORANDUM OPINION
Presently pending and ready for resolution is a motion to
dismiss filed by Defendant Washington Metropolitan Area Transit
Authority (“Defendant” or “WMATA”).
(ECF No. 6).
The issues
have been briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
the motion to dismiss will be granted.
I.
Background
In
a
separate
suit
against
various
individual
WMATA
employees, Plaintiff alleges that he was unlawfully pulled over
by members of a police unit operated by WMATA called the Metro
Transit Police Department (“Transit Police”) on July 30, 2013.
See Second Amended Complaint at 3-4, Gray v. Sarles, No. DKC-142939 (D.Md. May 9, 2016), ECF No. 25.
Plaintiff contends that
the Transit Police officers who pulled him over were acting
outside the geographic and legal scope of their authority at the
time of the stop.
Id.
Prior
to
initiating
that
suit,
Plaintiff
sent
a
letter
seeking information on the Transit Police officers involved to
WMATA General Manager Richard Sarles on April 29, 2014.
No.
1,
at
3).
Transit
Police
Deputy
Chief
Kevin
(ECF
Gaddis
responded on May 15, stating that the incident was “undergoing
investigation within the [Transit Police]” and that he would
contact Plaintiff when the investigation was complete and the
results were available.
(ECF No. 8-1, at 1).
Plaintiff replied
to Mr. Gaddis on July 24 (id. at 2), but he never received more
information from WMATA about the internal investigation (ECF No.
1, at 3).
On September 17, 2014, Plaintiff filed his suit against Mr.
Sarles and three unnamed officers from the 2013 Stop, alleging
violations of 18 U.S.C. § 241, 18 U.S.C. § 242, 42 U.S.C. §
14141, and 42 U.S.C. § 1983.
(Id.).
On July 6, 2015, the court
dismissed the case against Mr. Sarles, finding that he had been
sued in his official capacity and that, in that capacity, he was
immune from suits for torts committed by Transit Police officers
performing governmental functions.
Gray v. Sarles, No. DKC-14-
2939, 2015 WL 4092455, at *2-4 (D.Md. July 6, 2015).
Because
Plaintiff had failed to name or serve any other defendants in
that case, the court also ordered Plaintiff to show cause why
the case should not be dismissed.
2
Id. at *3-4.
On August 5, 2015, Plaintiff submitted a request to WMATA
under
the
Maryland
Public
Information
Act,
Md.
Code,
Gen.
Provisions § 4-101, et seq., seeking records including: (1) the
identities
of
the
three
officers
who
were
involved
in
the
traffic stop; (2) the identity of the responding supervisor for
that stop; (3) the identity of the dispatch person who received
a call he had made during the stop; (4) the findings of the
investigation that Deputy Chief Gaddis had referenced; (5) a
copy of the Transit Police jurisdiction policy; (6) “any logs
and
officers[’]
reports
regarding
this
matter;”
and
(7)
any
WMATA communications regarding the traffic stop.
(ECF No. 8-1,
at
acknowledging
4-5).
Defendant
responded
on
August
25,
Plaintiff’s request and explaining that the request would be
processed under the Public Access to Records Policy (“PARP”), a
public records law modeled after the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, and applicable to WMATA.
(Id. at 6).
Defendant’s letter notified Plaintiff that: (1) he needed to
submit a notarized request before any records could be released;
(2) certain information was exempt from disclosure and would be
redacted; and (3) it would charge him a fee for any staff time
spent beyond the first two hours and any copying beyond the
first 100 pages.
3
with
a
(Id. at 7).
notarized
originally requested.
request
Plaintiff responded on September
for
(Id. at 9).
3
the
same
information
he
had
On October 23, Defendant responded to Plaintiff’s formal
September 3 request, indicating it had records responsive to
each of Plaintiff’s inquiries that would be “releasable subject
to redaction” for various PARP exemptions.
(ECF No. 6-2, at 3).
It also told Plaintiff that the estimated cost of the records
would be $252.00 (id. at 4) and that he would have to pay before
WMATA would retrieve the records.
See PARP 8.9 (WMATA may seek
payment in advance if it has estimated that the fees will exceed
$250.00); see also 5 U.S.C. § 552(a)(4)(A)(v) (same rule under
FOIA).
The letter concluded by explaining that PARP policy was
to consider requests withdrawn if payment or clarification was
not received within 30 business days, giving Plaintiff until
December 8 to respond or submit payment.
(ECF No. 6-2, at 4).
On December 11, Defendant sent a letter notifying Plaintiff that
it had not received any payment or reply and was assuming that
he had withdrawn his request.
(ECF No. 6-3).
This letter also
explained that he could appeal the determination until January
27, 2016.
(Id.).
Plaintiff filed the instant suit under FOIA on May 25,
2016.
(ECF No 1).
He seeks the same seven sets of records he
previously requested.
(Id. at 3-4).
On August 15, Defendant
moved to dismiss for lack of subject matter jurisdiction under
Fed.R.Civ.P 12(b)(1).
(ECF No. 6).
4
Plaintiff responded on
August 23 (ECF No. 8), and Defendant replied on September 9 (ECF
No. 9).1
II.
Standard of Review
Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) on
the grounds that (1) Plaintiff’s pleadings as to subject matter
jurisdiction under FOIA are invalid and (2) he has failed to
exhaust his administrative remedies.
burden
of
proving
that
subject
exists in the federal court.
F.3d
642,
647
administrative
(4th
Cir.
remedies
The plaintiff bears the
matter
jurisdiction
properly
See Evans v. B.F. Perkins Co., 166
1999).
under
FOIA
A
failure
deprives
the
to
exhaust
courts
of
subject matter jurisdiction, see 5 U.S.C. § 552(a)(6)(A)(ii),
requiring analysis under Rule 12(b)(1) at the motion to dismiss
stage.
See Pair v. Soc. Sec. Admin., No RDB-15-1458, 2016 WL
739188, at *2-4 (D.Md. Feb. 25, 2016).
jurisdictional prerequisite under PARP.
1
Exhaustion is also a
See PARP § 9.2.1.
In a
Without seeking leave, Plaintiff has also filed a
surreply.
(ECF No. 10).
Under Local Rule 105.2(a), “[u]nless
otherwise ordered by the Court, surreply memoranda are not
permitted to be filed.”
A surreply may be permitted “when the
moving party would be unable to contest matters presented to the
court for the first time in the opposing party’s reply.” Khoury
v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citation
omitted). By contrast, “[a] motion for leave to file a surreply
may be denied when the matter addressed in the reply is not
new.”
Marshall v. Capital View Mut. Homes, No. RWT–12–3109,
2013 WL 3353752, at *3 (D.Md. July 2, 2013) (citation omitted).
Defendant did not raise new arguments in its reply. Therefore,
the court will not grant Plaintiff leave to file a surreply.
5
Rule 12(b)(1) motion, the court “is to regard the pleadings as
mere evidence on the issue, and may consider evidence outside
the
pleadings
without
summary judgment.”
converting
the
proceeding
to
one
for
Richmond, Fredericksburg & Potomac R.R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
should
grant
the
motion
to
dismiss
only
“if
the
The court
material
jurisdictional facts are not in dispute and the moving party is
entitled
to
prevail
as
a
matter
of
law.”
Richmond,
Fredericksburg & Potomac R.R., 945 F.2d at 768.
Generally,
pro
se
pleadings
are
liberally
construed
and
held to a less stringent standard than pleadings drafted by
lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).
Liberal construction means that the
court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).
Barnett v. Hargett, 174 F.3d
That is, even when pro se litigants
are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.
Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,
2012
WL
6087491,
at
6
*3
(D.Md.
Dec.
4,
2012)
(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
III. Analysis
Plaintiff purports to bring this action under FOIA.
No. 1 ¶ 1).
He argues that WMATA receives federal funding,
making FOIA applicable here.
moves
to
applies
dismiss
only
Government
because
to
of
552(f)(1).
(ECF
it
agencies
the
(ECF No. 8, at 2).
United
is
that
not
subject
are
an
States.”
5
to
Defendant
FOIA.
FOIA
“authority
of
U.S.C.
551(1);
§§
the
“However, it is clear on the face of 5 U.S.C. §
551(1) that an ‘agency’ must be a federal entity, and to the
extent that the non-state status of the District of Columbia
creates
any
ambiguity,
the
definition
of
does not include the District of Columbia.”
‘agency’
explicitly
People for the Am.
Way Found. v. U.S. Dep’t of Educ., 516 F.Supp.2d 28, 36 (D.D.C.
2007) (citing 5 U.S.C. § 551(1)(D)).
Courts have affirmed that
WMATA is not a federal agency, but rather an interstate compact
that serves as “an ‘instrumentality and agency of each of the
signatory
Virginia.’
parties
–
the
District
of
Columbia,
Maryland,
Hence it is not subject to [§ 551(1)].”
and
Seal & Co.
v. WMATA, 768 F.Supp. 1150, 1154 (E.D.Va. 1991) (quoting WMATA
v. One Parcel of Land, 706 F.2d 1312, 1314 (4th Cir. 1983)).
Accordingly, FOIA does not apply.
7
As noted above, however, public records are obtainable from
WMATA under the governing compact and WMATA regulations through
the PARP process.
Defendant notified Plaintiff that PARP would
govern his information request in its August 25, 2015, letter,
and Plaintiff responded by submitting a notarized copy of his
request within the allotted time.
Given Plaintiff’s
pro se
status, his claim will be construed as alleging violations of
PARP.
Jurisdiction in this court is valid under PARP § 9.3.2.
That section, however, requires that the action be filed within
two years of the date of administrative exhaustion.
PARP
§
9.2.1
(“A
Requester
must
exhaust
the
See also
administrative
appeals process, before seeking judicial review.”).
Exhaustion
under PARP requires that a denial of a request for records be
appealed.
PARP
§
9.2.2.
WMATA’s
letter
to
Plaintiff
on
December 11, 2015, clearly stated that he would have to file a
written appeal by January 27, 2016, in order to contest any
aspect of its determination.
contest
the
fact
that
he
(ECF No. 6-3).
failed
2
to
file
Plaintiff does not
such
an
appeal.2
Plaintiff argues in his opposition that Defendant failed
to reply to his requests within the appropriate time limits. In
the context of FOIA, courts have held that a requester may be
“deemed to have exhausted his administrative remedies and may
commence litigation immediately if the agency fails to comply
with the applicable time limit provisions.”
Coleman v. Drug
Enforcement Administration, 714 F.3d. 816, 820 (4th Cir. 2013).
Plaintiff did not commence his litigation immediately, however,
8
Therefore, Defendant’s motion to dismiss will be granted for
failure to exhaust administrative remedies.
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendant Washington Metropolitan Area Transit Authority will be
granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
and this type of “constructive exhaustion” is only valid “so
long as the agency has not cured its violation by responding
before the requester files suit.”
Id.
Therefore, even if
Defendant violated the PARP timing provisions as Plaintiff
indicates,
Plaintiff
was
still
required
to
file
an
administrative appeal once Defendant sent its responsive letter
on October 23, 2015.
9
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