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