Beagles v. Watkins et al

Filing 24

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting, in part, 4 Defendants Joel Saavedra and the U.S. Department of Labor Wage and Hour Division's Motion to Dismiss. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

EDDIE BEAGLES,
Plaintiff,
v.

Civ. No. 16-506 KG/CG

GEORGE WATKINS, STATE OF NEW MEXICO
WORKFORCE SOLUTIONS, JOEL SAAVEDRA,
AND U.S. DEPARTMENT OF LABOR WAGE
AND HOUR DIVISION,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING, IN PART, AND DENYING, IN
PART, DEFENDANTS’ MOTION TO DISMISS
This matter comes before the Court upon Defendants Joel Saavedra and the U.S.
Department of Labor Wage and Hour Division (DOL)’s Motion to Dismiss and supporting
memorandum (collectively, Motion to Dismiss) brought under Fed. R. Civ. P. 12(b)(1) and (6),
and filed on June 10, 2016. (Docs. 4 and 5). Plaintiff Eddie Beagles filed his Response and
Memorandum in Opposition to Defendant’s [sic] Motion to Dismiss on June 22, 2016. (Docs. 8
and 9). Mr. Saavedra and the DOL filed a reply on July 11, 2016. (Doc. 15). Defendants claim
that the Court lacks subject matter jurisdiction because Mr. Saavedra is not a proper defendant
and Plaintiff has not exhausted his administrative remedies under the Freedom of Information
Act (FOIA). (Doc. 5) at 2. Having considered the parties’ arguments and applicable law, the
Court grants, in part, and denies, in part, the Motion to Dismiss. Specifically, the parties agree
that Mr. Saavedra is an improper party, so the Motion to Dismiss is granted as to Defendant Joel
Saavedra. The Motion to Dismiss is denied, however, as to the DOL because Plaintiff exhausted
his administrative remedies.

I.

Background
Plaintiff submitted a request under FOIA to the DOL on September 3, 2013. (Doc. 5) at

1. The request sought information about Plaintiff and his former employer, the New Mexico
Department of Workforce Solutions, and was directed to Joel Saavedra’s attention. Id. Mr.
Saavedra was a DOL employee. Id. On September 23, 2013, Mr. Saavedra responded to
Plaintiff’s request on behalf of the DOL. Id. In its response, the DOL provided copies of a
number of documents the DOL deemed properly disclosable. Id. (citing (Doc. 1-2) at 9-11).
However, the DOL correspondence noted that the DOL withheld approximately 18 documents
under specific FOIA exemptions. Id. Plaintiff submitted a letter appealing the DOL’s decision
to withhold the 18 documents on December 15, 2013. Id. at 4. On January 14, 2014, the DOL
sent Plaintiff a letter acknowledging receipt of the appeal and informing Plaintiff that the appeal
was being processed. Id. at 5. A year went by and Plaintiff received no further information from
the DOL, so on January 29, 2015, Plaintiff sent another letter, this time through counsel,
requesting information on the status of his appeal. (Doc. 9) at 1. Plaintiff received no response.
Id. Plaintiff argues that by filing an appeal and receiving no response for more than two years,
he constructively exhausted his administrative remedies. The Federal Defendants counter that
Plaintiff has not exhausted his administrative remedies because his appeal remains ongoing.
(Doc. 5) at 5.
II.

Standard of Review
Federal Defendants seek dismissal of Plaintiff’s claims under Rules 12(b)(1) (lack of

subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be
granted). (Doc. 5) at 3. When a defendant seeks to dismiss a claim under both Rules 12(b)(1)
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and 12(b)(6), Plaintiff must first carry the burden of proving the Court has jurisdiction. Mounkes
v. Conklin, 922 F.Supp. 1501, 1505 (D. Kan. 1996). The Tenth Circuit has held that “the
exhaustion requirement is not jurisdictional because the FOIA does not unequivocally make it
so.” Hull v. I.R.S., U.S. Dep’t of Treasury, 656 F.3d 1174, 1182 (10th Cir. 2011) (citing Hidalgo
v. FBI, 344 F.3d 1256, 1258 (D.C.C. 2003)). So while “exhaustion remains a hurdle that FOIA
plaintiffs must general clear in order to obtain relief through the courts...[i]t is just not a
jurisdictional hurdle.” Id. at 1183. Accordingly, dismissal pursuant to Rule 12(b)(1) is not
warranted.
Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” FED. R. CIV. P. 12(b)(6). A complaint need not set forth detailed
factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. To survive a motion to dismiss, a plaintiff’s
complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is
plausible on its face. Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010); Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (requiring plaintiffs to “nudge[] their claims across the line
from conceivable to plausible”).
III.

Discussion: Exhaustion of Administrative Remedies
FOIA creates a private cause of action for the benefit of persons who have requested

certain records from a public agency and whose request has been denied. 5 U.S.C. § 552(a)(3).
However, a person requesting information under FOIA is required to exhaust administrative
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remedies prior to filing suit in federal court. Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 61
(D.C.C. 1990) (requiring plaintiff administratively appeal even untimely agency responses).
Exhaustion allows the agency to have the full opportunity to exercise its discretion and expertise,
and to make a factual record to support that discretion. Id. (explaining FOIA ensures agencies
benefit of full administrative process before suit can be filed).
Plaintiff sent a letter to the DOL on December 15, 2013, appealing the agency’s decision
to withhold certain documents under statutory exemptions. (Doc. 1-3) at 1-2. The DOL
responded to Plaintiff’s appeal on January 14, 2014, by acknowledging receipt of the appeal and
noting that it was “being processed.” Id. at 3. According to Plaintiff, the DOL still has not made
a determination on the appeal from December 15, 2013, more than 2 years later, and that the
DOL’s failure to do so in a timely matter violates the FOIA, allowing Plaintiff the opportunity to
proceed with his claim in federal court. Id. In other words, Plaintiff argues that he
constructively exhausted his administrative remedies. Id. Specifically, Plaintiff contends that
FOIA “recognizes a constructive exhaustion doctrine for the purposes of judicial review upon the
expiration of certain relevant FOIA deadlines.” (Doc. 9) at 3 (quoting Nurse v. Sec’y of the Air
Force, 231 F.Supp.2d 323, 328 (D.D.C. 2002)).
The DOL argues that FOIA “only requires a response to a FOIA request within the
[twenty]-day period, not production of the requested documents.” (Doc. 15) at 3 (emphasis
added) (quoting Navistar, Inc. v. U.S. EPA, 2011 WL 3743732, at *4 (D.D.C.)). The DOL
claims that its January 14, 2014, correspondence indicating the appeal was being processed
satisfied FOIA’s notification requirement. Id. The DOL argues that Plaintiff’s appeal remains
ongoing, therefore, he has failed to exhaust his administrative remedies and is precluded from
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pursuing judicial review. (Doc. 5) at 5.
A. Prudential Consideration
The Tenth Circuit has described exhaustion under FOIA as “a prudential consideration
rather than a jurisdictional prerequisite.” Hull, 656 F.3d at 1181-82 (citation omitted). Here,
Plaintiff availed himself of the right to appeal the DOL’s decision to withhold documents. (Doc.
1-2) at 12. More than two years passed without any response from the DOL addressing whether
it would release any additional information or deny the appeal outright. (Doc. 9). Because
exhaustion is a prudential consideration and the purposes of exhaustion have been served (i.e. the
agency has had a full opportunity to exercise its discretion and expertise and to make a factual
record to support its discretion, even if the DOL has chosen not to do so), the Court should now
have the opportunity to decide the FOIA claims on the merits.
B. Statutory Consideration
“Any person making a request to any agency for records…shall be deemed to have
exhausted his administrative remedies with respect to such request if the agency fails to comply
within the applicable time limit provisions of this paragraph.” 5 U.S.C. § 552(a)(6)(C). Upon a
request for records, agencies are required to determine whether to comply with the request within
20 days of receipt and to “immediately” notify the requestor. 5 U.S.C. § 552(a)(6)(A). “FOIA
commands that a federal agency ‘promptly’ make records available upon a request which
‘reasonably describes such records and…is made in accordance with published rules stating the
time, place, fees (if any), and procedures to be followed.” Pollack, 49 F.3d at 118 (citing 5
U.S.C. § 552(a)(3)). Agencies are provided the same timeframe, 20 days, to “make a
determination with respect to any appeal.” 5 U.S.C. § 552(a)(6)(A)(ii) (emphasis added).
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The DOL clearly responded to Plaintiff’s appeal within the statutory time period of 20
days (excluding weekends and holidays). (Doc. 1-3) at 3. However, there is nothing in the
agency’s response to indicate that the DOL made a determination whether to produce additional
documents or deny Plaintiff’s appeal. Id. The DOL letter simply indicates that the appeal was
received, that appeals were being handled on a “first-in first-out basis,” and that there were a
“substantial” number of appeals awaiting review and decision. Id. Moreover, the DOL did not
respond at all to Plaintiff’s correspondence dated January 29, 2015, seeking information on the
status of the appeal, nor has the DOL provided any additional information. (Doc. 9) at 1.
While the Court agrees that the statute does not require actual production of documents
within the statutory time frame, the Court notes that the statute does require the agency to “make
a determination with respect to any appeal.” 5 U.S.C. § 552(a)(6)(A)(ii) (emphasis added). The
Court agrees with Plaintiff’s argument that the DOL’s response, indicating mere receipt of the
appeal, is insufficient to satisfy the statute’s requirement that the agency make a determination
on the appeal and communicate that determination to the requester.
“Under FOIA's statutory scheme, when an agency fails to comply in a timely fashion to a
proper FOIA request, it may not insist on the exhaustion of administrative remedies, see 5 U.S.C.
§ 552(a)(6)(C), unless the agency responds to the request before suit is filed.” Pollack v. Dep’t
of Justice, 49 F.3d 115, 118 (4th Cir. 1995) (citing Oglesby v. Dep’t of the Army, 920 F.2d 57
(D.C.C. 1990). Even when Congress extended the time limit for responding to FOIA requests
from 10 days to 20 days, it expressed concerns about agencies delaying their responses. Gilmore
v. United States Dep’t of Energy, 33 F.Supp.2d 1184, 1187 (N.D. Cal. 1998) (explaining
Congress “took these deadlines very seriously” and expected timely agency responses). The
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increase Congress made in time limits to make them more realistic signaled the priority Congress
placed on agency compliance with the time limits. Id. “All of this strongly suggests that an
agency’s failure to comply with the FOIA’s time limits is, by itself, a violation of FOIA….” Id.
(citation omitted). Courts have found an agency’s failure to promptly respond to a plaintiff’s
appeal grounds for exhaustion. Elkins v. Federal Aviation Administration, 65 F.Supp.3d 194,
198 (2014) (finding requester who waited more than 20 days after filing administrative appeal
before filing suit sufficiently exhausted administrative remedies); New York Times Co. v. U.S.
Dep’t of Labor, 340 F.Supp.2d 394, 399 (2004) (determining DOL’s failure to grant or deny
request for disclosure amounted to denial for purposes of FOIA where requester waited for
information for nearly 2 years); Maricopa Audubon Soc. v. U.S. Forest Service, 923 F.Supp.
1436, 1442 (1995) (stating that if agency fails to comply with applicable time limit provisions,
requesting party shall be deemed to have exhausted administrative remedies and may bring suit);
Stabasefski v. United States, 919 F.Supp. 1570, n. 1 (1996) (holding that court had subject matter
jurisdiction where agency failed to respond to appeal within 30 days, resulting in constructive
exhaustion of administrative remedies).
Still, an agency can overcome the statute’s narrow timeframe by sending an interim letter
to the requester explaining any delay in processing the FOIA request. Brumley v. United States
Dep’t of Labor, 767 F.2d 444, 445 (8th Cir.1985) (permitting untimely agency response where
agency sent notice request forwarded and delay expected). Where the delay beyond the statutory
period is brief, the defense of failure to exhaust administrative remedies will not be deemed
waived by the agency under Section 552(a)(6)(C)). Id. However, the extension envisioned by
the statute is a mere 10 days. 5 U.S.C. § 552(a)(6)(B). If the agency fails to respond within the
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applicable time limit, i.e. 30 days, the requester will be allowed to pursue judicial remedies
absent “exceptional circumstances” and a showing by the agency that it is “exercising due
diligence in responding to the request.” Id. at § 552(a)(6)(C). In the present case, more than 30
days have passed. Moreover, the Court finds no evidence of exceptional circumstances requiring
additional time. Likewise, given the substantial amount of time that has elapsed since Plaintiff
filed his appeal, the Court sees no indication that the DOL has exercised anything remotely
resembling due diligence in responding to this request.
In FOIA cases, the agency bears the ultimate burden of proof. See United States Dep’t of
Justice v. Tax Analysts, 492 U.S. 136, 142, n. 3 (1989). “At all times courts must bear in mind
that FOIA mandates a ‘strong presumption in favor of disclosure’….” Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C.C. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164,
173 (1991)). Here, the DOL has had more than 2 years to provide a final determination on
Plaintiff’s appeal. To allow a simple acknowledgment of receipt of an appeal to satisfy the
agency’s statutory requirements, without any determination on the merits, thus preventing
Plaintiff from exhausting his administrative remedies creates a Catch-22. See, e.g., Citizens for
Responsibility & Ethics in Wash. v. Fed. Elec. Comm’n, 711 F.3d 180, 281 (D.C.C. 2013),1
stating, “the agency could process the request at its leisure, free from any timelines. All the
while, the agency’s actions would remain immune from suit because the requester would not yet

1 In

Citizens, the Court held that FOIA required that within the relevant time period, the agency
must at least inform the requester of some determination in order to trigger the administrative
exhaustion requirements. Id. at 277. Unlike the present case, Citizens involved an agency’s
failure to respond to the initial FOIA request rather than the requester’s appeal. Id. at 278.
However, the untenable position of the requester is the same in Citizens and the present case:
both are essentially stuck without a remedy because the agency will not make a determination
and without a determination, the requester cannot exhaust his administrative remedies.
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have been able to appeal and exhaust administrative remedies.” This lack of diligence directly
contradicts FOIA’s primary purpose: “to open agency action to the light of public scrutiny.”
United States Dep’t of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 772
(1989). Accordingly, the Court finds that Plaintiff has done everything he could to comply with
FOIA’s requirements, and in so doing, has exhausted his administrative remedies.
IT IS ORDERED that the Motion to Dismiss (Doc. 4) is granted, in part, and denied, in
part. The motion is granted as to Defendant Joel Saavedra and he is dismissed entirely from this
matter with prejudice. His name will be stricken from the caption of this case. The Motion to
Dismiss is otherwise denied in that Plaintiff has exhausted his administrative remedies.

_______________________________
UNITED STATES DISTRICT JUDGE

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