Mattson et al v. Johnson et al

Filing 39

ORDER granting Defendants' 20 Motion to Dismiss Plaintiffs' FOIA claim, dismissing with prejudice Plaintiffs' FOIA claim from the First Amended Complaint; denying as moot Defendants' 21 Motion for Summary Judgment; denying as moot Plaintiffs' 22 Motion for Summary Judgment; denying as moot Plaintiffs' 31 Motion to Amend. Signed by Judge Larry R. Hicks on 2/23/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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***

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HEATHER MATTSON and ROMAN
BORISOV,
3:15-CV-00182-LRH-WGC

Plaintiffs,
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v.

ORDER

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JEH JOHNSON, et al.,
Defendants.

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Before the Court is Defendants’ Motion to Dismiss, or Alternatively, Motion for

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Summary Judgment. Doc. #20 and 21. Plaintiffs Heather Mattson and Roman Borisov

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(collectively “Plaintiffs”) filed a Response (Doc. #29), to which Defendants replied (Doc. #34).

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Also before the Court is Plaintiffs’ Motion for Summary Judgment. Doc. #22. Defendants filed

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a Response (Doc. #26), to which Plaintiffs replied (Doc. #36). Additionally, Plaintiffs filed a

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Motion to Amend their Complaint. Doc. #31. Defendants filed a Response (Doc. #35), to which

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Plaintiffs replied (Doc. #38).

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I. Factual Background

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Plaintiffs’ first cause of action in this case involves a Freedom of Information Act

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(“FOIA”) request. On March 12, 2012, the National Records Center (“NRC”) of the United

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States Citizenship and Immigration Services (“USCIS”), a component of the Department of

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Homeland Security (“DHS”), received a FOIA request from Plaintiff Roman Borisov

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(“Borisov”). On March 12, 2012, the NRC informed Borisov that it had received his FOIA
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request and it was placing his request on the “complex track” for processing. The NRC sent

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Borisov a letter dated July 20, 2012, providing him with responsive material and describing what

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was being withheld. The letter also informed Borisov that he had the right to appeal the USCIS’s

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FOIA determination within 60 days of July 20, 2012. There is a dispute as to when Borisov

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received this letter, since despite the fact the letter is dated July 20, 2012, Borisov alleges that he

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received it in September of 2012.

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On March 27, 2015, Plaintiffs filed their initial Complaint. Doc. #2. On July 15, 2015,

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Borisov filed an appeal to the FOIA response. The USCIS responded to Borisov’s appeal in a

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letter dated July 28, 2015, stating that the USCIS was denying the appeal because it had not been

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received within 60 days of July 20, 2012. On September 10, 2015, Plaintiffs filed an Amended

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Complaint. Doc. #12. On November 16, 2015, Defendants filed a Motion to Dismiss, or

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Alternatively, Motion for Summary Judgment on the FOIA claim. Doc. #20 and 21. Also on

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November 16, 2015, Plaintiffs filed a Motion for Summary Judgment on the FOIA claim. Doc.

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#22. On December 10, 2015, Defendants filed a Response to Plaintiffs’ Motion for Summary

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Judgment. Doc. #27. Also, on December 10, 2015, Plaintiffs filed a Response to Defendants’

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Motion to Dismiss, or Alternatively, Motion for Summary Judgment. Doc. #29. On December

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13, 2015, Plaintiffs filed a Motion to Amend. Doc. #31. On December 28, 2015, Defendants

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filed a Reply in support of their Motion to Dismiss, or Alternatively, Motion for Summary

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Judgment. Doc. #34. Also on December 28, 2015, Defendants filed a Response to Plaintiffs’

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Motion to Amend. Doc. #35. Additionally on December 28, 2015, Plaintiffs filed a Reply in

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support of their Motion for Summary Judgment. Doc. #36. Finally, on January 3, 2016,

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Plaintiffs filed a Reply in support of their Motion to Amend. Doc. #38.

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II. Legal Standard

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A Rule 12(b)(1) motion challenges subject matter jurisdiction and may be either facial or

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factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). A facial 12(b)(1) motion

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involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1)

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motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a

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defendant makes a facial challenge, all material allegations in the complaint are assumed true,
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and the court must determine whether lack of federal jurisdiction appears from the face of the

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complaint itself. Thornhill Publ'g Co. v. General Tel. Elec., 594 F.2d 730, 733 (9th Cir.1979).

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To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the

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Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. Mendiondo v. Centinela Hosp.

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Med. Ctr., 521 F.3d 1097, 1103 (9th Cir. 2008). That is, a complaint must contain “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). The 8(a)(2) pleading standard does not require detailed factual allegations, but a

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pleading that offers “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

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cause of action’” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To satisfy the plausibility standard, 8(a)(2) requires a complaint to “contain sufficient

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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

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(quoting Twombly, 550 U.S. at 570). A claim has facial plausibility when the pleaded factual

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content allows the Court to draw the reasonable inference, based on the Court’s “judicial

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experience and common sense,” that the defendant is liable for the misconduct alleged. See id. at

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678-79. The plausibility standard “is not akin to a probability requirement, but it asks for more

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than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts

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that are merely consistent with a defendant’s liability, it stops short of the line between

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possibility and plausibility of entitlement to relief.” Id. at 678 (internal quotation marks

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omitted).

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In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as

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true. Id. The “factual allegations that are taken as true must plausibly suggest an entitlement to

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relief, such that it is not unfair to require the opposing party to be subjected to the expense of

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discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

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Moreover, “bare assertions . . . amount[ing] to nothing more than a formulaic recitation of the

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elements of a . . . claim . . . are not entitled to an assumption of truth.” Moss v. U.S. Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal, 556 U.S. at 681) (brackets in original) (internal

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quotation marks omitted). The court discounts these allegations because “they do nothing more
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than state a legal conclusion—even if that conclusion is cast in the form of a factual allegation.”

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Id. (citing Iqbal, 556 U.S. at 681). “In sum, for a complaint to survive a motion to dismiss, the

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non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly

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suggestive of a claim entitling the plaintiff to relief.” Id.

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, affidavits or declarations, stipulations, admissions, and other materials in the

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record show that “there is no genuine issue as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for summary

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judgment, the evidence, together with all inferences that can reasonably be drawn therefrom,

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must be read in the light most favorable to the party opposing the motion. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cnty. of Tuolumne v. Sonora Cmty.

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Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). A motion for summary judgment can be complete

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or partial, and must identify “each claim or defense—or the part of each claim or defense—on

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which summary judgment is sought.” Fed. R. Civ. P. 56(a).

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The party moving for summary judgment bears the initial burden of informing the court

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of the basis for its motion, along with evidence showing the absence of any genuine issue of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it

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bears the burden of proof, the moving party must make a showing that no “reasonable jury could

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return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). On an issue as to which the nonmoving party has the burden of proof, however, the

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moving party can prevail merely by demonstrating that there is an absence of evidence to support

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an essential element of the non-moving party’s case. Celotex, 477 U.S. at 323.

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To successfully rebut a motion for summary judgment, the nonmoving party must point

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to facts supported by the record that demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). A “material fact” is a fact “that

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might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248.

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Where reasonable minds could differ on the material facts at issue, summary judgment is not

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appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material
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fact is considered genuine “if the evidence is such that a reasonable jury could return a verdict

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for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a scintilla of

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evidence in support of the party’s position is insufficient to establish a genuine dispute; there

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must be evidence on which a jury could reasonably find for the party. See id. at 252.

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“[S]peculative and conclusory arguments do not constitute the significantly probative evidence

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required to create a genuine issue of material fact.” Nolan v. Cleland, 686 F.2d 806, 812 (9th

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Cir. 1982).

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A party may amend its pleadings after a responsive pleading has been filed by leave of
court. Fed. R. Civ. P. 15(a)(2). Leave of court to amend should be freely given when justice so

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requires and when there is no undue delay, bad faith, or dilatory motive on the part of the moving

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party. See Wright v. Incline Village General Imp. Dist., 597 F.Supp.2d 1191 (D. Nev. 2009);

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DCD Programs, LTD v. Leighton, 883 F.2d 183 (9th Cir. 1987).

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III. Discussion

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Defendants argue as a preliminary matter that because Plaintiffs failed to exhaust their

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administrative remedies, this Court lacks subject matter jurisdiction to consider their FOIA

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challenge, and consequently, their FOIA claim should be dismissed. Plaintiffs argue that

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because Borisov received the letter in September of 2012, he did not have time to appeal and that

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the Court should excuse the delay.

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The FOIA clearly requires a party to exhaust all administrative remedies before seeking

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redress in the federal courts. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994); Dresser

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Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir.1979); Hedley v. United States, 594

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F.2d 1043, 1044 (5th Cir.1979) (per curiam); Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 58

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(D.C.Cir.1987); In re Steele, 799 F.2d 461, 465 (9th Cir.1986); Brumley v. U.S. Dept. of Labor,

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767 F.2d 444, 445 (8th Cir.1985) (per curiam); Stebbins v. Nationwide Mutual Ins. Co., 757 F.2d

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364, 366 (D.C.Cir.1985); Cazalas v. United States Dept. of Justice, 660 F.2d 612 (5th Cir.1981).

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This is “so that the agency has an opportunity to exercise its discretion and expertise on the

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matter and to make a factual record to support its decision. .... The exhaustion requirement also

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allows the top managers of an agency to correct mistakes made at lower levels and thereby
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obviates unnecessary judicial review.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61

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(D.C.Cir.1990) (citing McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d

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194 (1969)); see also Dettmann v. U.S. Dep't of Justice, 802 F.2d 1472, 1476 (D.C.Cir.1986) (“It

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goes without saying that exhaustion of remedies is required in FOIA cases.”) (citing Stebbins,

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757 F.2d at 366). Further, “[i]f there is to be any uniformity in FOIA interpretations within a

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given agency, and if agencies are to have an opportunity to revise their responses in light of

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intervening responses to the same FOIA request by other agencies, such uniformity can best be

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afforded through the administrative appeal process.” Oglesby, 920 F.2d at 64-65. In short,

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exhaustion of administrative remedies in a FOIA case is treated as an element of a FOIA claim,

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which, as with all elements of any claim, must be proved by the plaintiff in order to prevail.

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Bruzon v. Drug Enf't Admin., 576 F. Supp. 2d 1, 3 (D.D.C. 2008). “[F]oregoing an

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administrative appeal will preclude the requester from ever bringing suit on that request because

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the individual will not have exhausted his administrative remedies.” Oglesby, 920 F.2d at 65.

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Moreover, exhaustion of administrative remedies is a perquisite to subject matter jurisdiction and

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dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(1) where the plaintiff failed

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to exhaust his or her administrative remedies. See United States v. Steele (In re Steele), 799 F.2d

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461, 465-66 (9th Cir.1986).

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Here, it is clear that Borisov did not exhaust his administrative remedies before filing

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suit, and thus, this Court lacks subject matter jurisdiction over the FOIA claim. The law and the

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letter Plaintiff received clearly stated that he had 60 days in which to file an appeal, and Borisov

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did not do so in that time. Even if the Court accepts that he received the letter in September of

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2012, nothing excuses the fact that he did not file an appeal within 60 days of that date. Instead,

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he waited nearly three years, and only filed an appeal after he had already filed the complaint in

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this case. Moreover, Plaintiff provides no adequate justification to excuse his lengthy delay.

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Additionally because Plaintiff Heather Mattson never filed a FOIA request, much less appealed

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one, there was no exhaustion there either. Because Plaintiffs failed to exhaust their

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administrative remedies, this Court dismisses their FOIA claim for lack of subject matter

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jurisdiction with prejudice as any amendment would be futile. Specifically, Plaintiff requests
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leave to amend to add the DHS as a defendant if necessary; however, this would have no effect

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on the underlying exhaustion of administrative remedies issue, which is dispositive, and thus

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there is no need to address the motion for leave to amend, and it is denied as moot.

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IV. Conclusion
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Freedom

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of Information Act claim (Doc. #20) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Freedom of Information Act claim is

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DISMISSED from Plaintiffs’ First Amended Complaint with prejudice. (Doc. #12).
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (Doc.

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#21) is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. #22)

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is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Amend (Doc. #31) is DENIED as

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moot.

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IT IS SO ORDERED.

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DATED this 23rd day of February, 2016.

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________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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