Brook v. Holzerland et al

Filing 26

ORDER Overruling Objections and Adopting the 19 Report and Recommendation. The 9 Motion to Dismiss is granted. Signed by District Judge Marcia A. Crone on 9/23/24. (kcv) cc: Brooks via USPS on 9/24/24

UNITED STATES DISTRICT COURT

ADAM BROOK,
Plaintiff,
v.
WILLIAM HOLZERLAND, FOIA
OFFICER; AND U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendants.

EASTERN DISTRICT OF TEXAS

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NO. 1:23-CV-00379-MAC-ZJH

ORDER OVERRULING OBJECTIONS AND ADOPTING MAGISTRATE JUDGE’S
REPORTS AND RECOMMENDATION
On October 20, 2023, the court referred this case to the Honorable Zack Hawthorn,
United States Magistrate Judge, for pretrial management. Pending before the court is Defendants
William Holzerland and U.S. Department of Health and Human Service’s (HHS) Motion to
Dismiss (Doc. No. 9).

On August 13, 2024, Judge Hawthorn issued his Report and

Recommendation (Doc. No. 19), which recommends granting Defendants’ motion. On August
26, 2024, Plaintiff Adam Brook filed objections to Judge Hawthorn’s report (Doc. No. 21). On
September 9, 2024, Defendants filed a response to those objections (Doc. No. 24).
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(l)(c); FED. R. CIV. P. 72(b)(2)–(3).
The court has reviewed Judge Hawthorn’s Report and Recommendation and has considered
Brook’s objections. The court holds that Judge Hawthorn’s findings and conclusions of law are
correct, and that Brook’s objections are without merit.

1. Objection 1: Brook’s FOIA claims did not accrue until he was injured by HHS’s
final agency action under Corner Post, Inc. v. Bd. of Governors of Fed. Reserve Sys.,
144 S. Ct. 2440.
Brook argues that his FOIA claims did not accrue until a final agency action factually
injured him. Doc. No. 21 at 4–5 (discussing Corner Post, 144 S. Ct.). In Corner Post, the
Supreme Court applied this same accrual standard to an APA claim. 1 Corner Post, 144 S. Ct.
at 2449. Brook explains that because the FOIA is part of the APA, his FOIA claims enjoy the
same standard. Doc. No. 21 at 4–5. If that were true, two of his FOIA claims would not
have accrued until HHS2 denied his administrative appeal. Id. at 5. In the same line of
thinking, his third FOIA claim—which he never appealed—might not have accrued at all
because HHS’s non-response “injures [him] anew every day.” Id. at 6. For the reasons set
forth below, Corner Post is not controlling.
FOIA claims and APA claims accrue when the elements of each claim are present. Both
claims share a statute-of-limitations provision, 28 U.S.C. § 2401(a). Under this provision, a
claim against the United States must be “filed within six years after the right of action first
accrues.” Id. In general, a claim accrues whenever it is “complete and present,” and a litigant
can sue. Corner Post, 144 S. Ct. at 2451 (quoting Bay Area Laundry and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Ca., 522 U.S. 192, 201).
But unlike APA claims, FOIA claims do not require an injury from an agency’s final
action. To bring an APA claim, a litigant must show that a “final agency action,” 5 U.S.C. §
704, caused his injury, Director, Office of Workers’ Compensation Programs v. Newport News

1

The court refers to claims under 28 U.S.C. § 702 and § 704 as “APA claims.”

HHS is effectively the sole remaining defendant because Brook has agreed to dismiss his claims against
William Holzerland. See Doc. No. 19 at 5, n.5.
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Shipbuilding & Dry Dock Co., 514 U.S. 122, 127. However, to bring a FOIA claim, a litigant
needs to show only that he exhausted his remedies, 5 U.S.C. § 552(a)(6)(C)(i), and that the
agency improperly withheld documents, Goldgar v. Office of Admin., Executive Office of the
President, 26 F.3d 32, 34 (5th Cir. 1994). To bring a Privacy Act claim, the litigant needs
either to know or have reason to know about a violation. Smith v. United States, 142 F. App’x
209, 210 (5th Cir. 2005). Once those elements are complete and present, the claims accrue.
Corner Post, 144 S. Ct. at 2452 (quoting Bay Area Laundry, 522 U.S. at 201). No factual injury
or final agency action is required. 3
Therefore, Brook’s FOIA claims accrued without any factual injury or final agency
action, and the statute of limitations has run. Even if Brook had brought his claims under the
APA, there is some authority to suggest that it would also fail for other reasons. 4 At any rate,
Brook’s FOIA claims have lapsed, and his claims are dismissed.
Still, Brook observes that it is odd for a litigant to sue as soon as twenty days “when it is
obvious that federal agencies do not respond to FOIA requests” in that time. Doc. No. 21 at 5.
Notably, Congress designed the statute to give courts review while an agency is processing a
request—not necessarily after the agency has taken final action. See 5 U.S.C. § 552(a)(6)(C)(i)
(“If the Government can show exceptional circumstances exist and that the agency is exercising

To be clear, an injury from a final agency action is also not necessary for a litigant to show any of the
elements in a FOIA claim or Privacy Act claim. See Moore v. U.S. Immigration & Customs Enf’t, 513 F. Supp.
3d 742 (W.D. Tex. 2021) (describing how a litigant was able to bring a FOIA claim before a final agency action);
§ 552 (explaining how a requestor is “deemed to have exhausted his administrative remedies . . . if the agency fails
to comply with the applicable time limit provisions of this paragraph” even without a final agency action); Smith,
142 F. App’x at 210 (explaining how knowledge of a potential Privacy Act claim was sufficient to bring a claim
without any analysis of a final agency action).
3

Under § 704, an APA claim is only available when “there is no other adequate remedy in court.” Courts
have routinely denied APA claims seeking FOIA-type remedies for this reason. See, e.g., Cent. Platte Nat. Res.
Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142 (8th Cir. 2011); Citizens for Responsibility & Ethics in Washington v.
United States Dep’t of Justice, 846 F.3d 1235 (D.C. Cir. 2017).
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due diligence in responding to the request, the court may retain jurisdiction and allow the agency
additional time to complete its review of the records.”). This is a mechanism for review that
was once available to Brook but is no more.
It is, therefore, ORDERED that Brook’s Objections to Report and Recommendation
(Doc. No. 21) are OVERRULED.
It is further ORDERED that Judge Hawthorn’s Report and Recommendation (Doc. No.
19) is ADOPTED.
It is further ORDERED that Defendants’ Motion to Dismiss (Doc. No. 9) is GRANTED.
Accordingly, Brook’s claims against William Holzerland and the U.S. Department of
Health and Human Services are DISMISSED WITH PREJUDICE.
The court will enter a Final Judgment Separately.
SIGNED at Beaumont, Texas, this 23rd day of September, 2024.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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