Opinion
CIV-19-500-JD
01-28-2023
LAWRENCE GENE BOTHWELL, Plaintiff, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants.
REPORT AND RECOMMENDATION
SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner appearing pro se, brings this action pursuant to the Freedom of Information Act (FOIA), and the Privacy Act, 5 U.S.C. § 552. (ECF No. 9). United States District Judge Joe Heaton has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The United States Department of Justice (DOJ) has filed a Motion to Dismiss. (ECF No. 18). For the reasons set forth herein, it is recommended that the Motion to Dismiss be DENIED.
By Order entered on December 30, 2019, this case was reassigned to U.S. District Judge Jodi W. Dishman for all further proceedings. See ECF No. 28.
I. PROCEDURAL BACKGROUND
On February 12, 2018, Plaintiff submitted six FOIA requests, four to the Executive Office for United States Attorney (EOUSA) and two to the United States Attorney's Office for the Western District of Oklahoma (USAO-WDOK), all seeking records relating to the appointment of Robert Troester to various positions within the USAO-WDOK. (ECF No. 9:3-4). The two requests sent to the USAO-WDOK were forwarded to the EOUSA on February 20, 2018. (ECF No. 9:4). Upon their receipt, the EOUSA assigned all six requests as FOIA-2018-002523 (FOIA #2523) and responded to Plaintiff on April 4, 2018. (ECF No. 9:4). On June 28, 2018, Plaintiff appealed the April 4, 2018 response, and the Office of Information Policy (OIP) assigned the appeal as DOJ-AP-2018-6609. (ECF No. 9:4, 6). On September 19, 2018, the OIP affirmed the April 4, 2018 response, but also remanded the matter back for an additional search of records. (ECF No. 9:6; ECF No. 20:1).
On June 27, 2019, Plaintiff filed an Amended Complaint in the instant case, alleging the improper withholding of documents related to FOIA #2523. (ECF No. 9). On October 21, 2019, the DOJ filed a Motion to Dismiss the Amended Complaint, arguing that dismissal is appropriate based on: (1) Plaintiff's failure to exhaust his administrative remedies and (2) Plaintiff's failure to state a claim. (ECF No. 18).
As an additional matter, Defendant also argues that they are the only proper defendant to the lawsuit. See ECF No. 18:1, n. 1. Defendant is correct. See infra.
II. STANDARD OF REVIEW FOR A MOTION TO DISMISS
Defendant seeks dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 18:7-9). Pursuant to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), to survive a motion to dismiss, a complaint must contain enough allegations of fact, taken as true, “to state a claim to relief that is plausible on its face.” Khalikv. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 570). Under this standard, “the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original)).
The “plausibility” standard announced in Twombly and Iqbal is not considered a “heightened” standard of pleading, but rather a “refined standard,” which the court of appeals has defined as “referring] to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khaik, 671 F.3d at 1191 (citing Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)). The Tenth Circuit has noted that the nature and specificity of the allegations required to state a plausible claim will vary based on context. Robbins, 519 F.3d at 1248. “Thus, [it has] concluded the Twombly/Iqbal standard is 'a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do.'” See id. at 1247.
Accordingly, in deciding Twombly and Iqbal, there remains no indication the Supreme Court “intended a return to the more stringent pre-Rule 8 pleading requirements.” Khalik, 671 F.3d at 1191 (citing Iqbal, 556 U.S. at 678). It remains true that “[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
Finally, “a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hal v. Belmon, 935 F.2d 1106, 1110 (1991). Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Iqbal, 556 U.S. at 679.
In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted when it lacks factual allegations sufficient “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, at 555 (2007) (citation omitted). Bare legal conclusions in a complaint are not entitled to the assumption of truth; “they must be supported by factual allegations” to state a claim for relief. Iqbal, 556 U.S. at 679.
III. THE DOJ IS THE ONLY PROPER DEFENDANT
In the lawsuit, Mr. Bothwell has named three defendants: (1) the DOJ, (2) the EOUSA, and (3) the USAO-WDOK. See ECF No. 9:1. The DOJ argues that it is the only proper defendant in this action, because it is an agency, while the EOUSA, and the USAO-WDOK are offices within the agency of the DOJ. See ECF No. 18:1, n.1. Defendant is correct.
The FOIA “vests jurisdiction in federal district courts to enjoin an 'agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.' ” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). As a result, “federal jurisdiction [under FOIA] is dependent upon a showing that an agency”has improperly withheld its records. Kissinger, 445 U.S. at 137-38 (emphasis added). The FOIA specifically defines agency to include “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552 (f)(1). Thus, because the EOUSA and the USAO-WDOK are offices within the agency of the DOJ, the only proper defendant is the DOJ, which has filed the Motion to Dismiss. See Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987) (recognizing that a federal agency is the only proper defendant to a FOIA action).
See https://www.justice.gov/agencies/list.
Accordingly, the Court should dismiss Defendants EOUSA and USAO-WDOK under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Springer v. U.S. Attorney for the N. Dist. of Oklahoma, No. 15-CV-0142-JED-FHM, 2015 WL 6627821, at *3 (N.D. Okla. Oct. 30, 2015) (dismissing employees of executive offices, under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, who had been sued in their official capacity on behalf of the office at which they were employed, because “FOIA actions are focused on reforming the unlawful actions of agencies and not of individual employees within those agencies.”).
IV. PLAINTIFF HAS EXHAUSTED HIS ADMINISTRATIVE REMEDIES
Next, Defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff had failed to properly exhaust his administrative remedies prior to filing his lawsuit. (ECF No. 18:3-7). The Court should reject this argument.
In support of the Motion to Dismiss, Defendant has attached a November 26, 2018 FOIA response and a mailing label from Plaintiff which allegedly supports Defendant's argument that Plaintiff had failed to timely exhaust his administrative remedies. See ECF No. 18-1 & 18-2. The undersigned recognizes that generally, “[a] 12(b)(6) motion must be converted to a motion for summary judgment if matters outside the pleading are presented to and not excluded by the court.” GFF Corporation v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (citation omitted). However, in GFF Corporation, the Tenth Circuit also stated: “if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff's claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.” Id. Here, Mr. Bothwell referenced the November 26, 2018 response and his appeal of the same, which he alleges was dated February 23, 2019. (ECF No. 9:6, 7). As a result, Defendant's exhaustion argument should be adjudicated under Fed. R. Civ. P 12(b)(6).
A. Exhaustion of Administrative Remedies
In Hull v. I.R.S, U.S. Deptof Treasury, 656 F.3d 1174 (10th Cir. 2011), the Tenth Circuit Court of Appeals stated: “Generally, a plaintiff must exhaust h[is] administrative remedies under FOIA before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Id. at 1179 (internal citation omitted). However, the Court clarified that “exhaustion under FOIA is a prudential consideration rather than a jurisdictional prerequisite.” Id. at 1181. By means of explanation, the Court stated that the “FOIA, the relevant statute in this case, does not unequivocally make the exhaustion requirement jurisdictional.” Id. (citing Hidalgo v. F.B.I., 344 F.3d 1256, 1258 (D.C. Cir. 2003)) (internal quotation marks omitted); see Weinberger v. Saf, 422 U.S. 749, 766 (1975) ("Only when Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision ... has the Supreme Court held that exhaustion is a jurisdictional prerequisite.”). Thus, the Court concluded that "as a prudential doctrine, [a plaintiff's] alleged failure to exhaust precludes judicial review if the purposes of exhaustion and the particular administrative scheme support such a bar.” Hull at 1183.
B. Plaintiff Has Exhausted His Administrative Remedies
The DOJ argues that dismissal is appropriate because Mr. Bothwell failed to exhaust his administrative remedies prior to filing the instant lawsuit. (ECF No. 18:5-7). The Court should reject this argument.
At the heart of Defendant's argument is a letter from the DOJ in response to FOIA 2018-005847 (FOIA #5847) dated November 26, 2018. (ECF No. 18-1). The letter stated that Mr. Bothwell's appeal from FOIA #5847 "must be postmarked or electronically transmitted within ninety (90) days of the date of [the] response[.]” (ECF No. 18-1:2). Defendant argues that Plaintiff did not meet the filing deadline, but instead postmarked his appeal March 1, 2019, five days after the deadline. (ECF No. 18:7).
In response to Defendant's argument, Mr. Bothwell argues that the November 26, 2018 response: (1) concerned only FOIA #5847, which is not the subject of this lawsuit, and (2) did not address FOIA #2523, which is the subject of the instant case. See ECF No. 20:1-5; 20:3 ("this instant Lawsuit DID NOT include (and could NOT include) "FOIA-2018-005847”). In reply to Plaintiff's argument, Defendant quotes Mr. Bothwell's Amended Complaint in an effort to argue that Plaintiff changed his argument in response to Defendant's Motion to Dismiss, and that the instant case does concern FOIA #5847, which the DOJ claims that Plaintiff has not exhausted. (ECF No. 22:1-4). According to Defendant, "Plaintiff acknowledges in his Amended Complaint that FOIA #5847 was merely the FOIA number assigned to FOIA #2523 on remand.” (ECF No. 22:2). The portion of Plaintiff's Amended Complaint on which the Defendant relies states: "On November 26, 2018, EOUSA for the DOJ responded in regard to the OlP's remand assigning FOIA-2018-005847 and providing six records.” (ECF No. 9:6). Indeed, this portion of the Amended Complaint suggests that the remand dated September 19, 2018 in response to FOIA #2523 was "assign[ed]” FOIA #5847.
In a Sur-reply and in response to Defendant's argument, however, Mr. Bothwell argues that the September 19, 2018 response/remand effectively ended the exhaustion process for FOIA #2523, the only FOIA request relevant to the instant case. (ECF No. 25). The Court should agree. The September 19, 2018 remand clearly relates to FOIA #2523 (and its appeal-DOJ-AP-2018-006609) and states: "If you are dissatisfied with my action on your appeal, the FOIA permits you to file a lawsuit in federal district court in accordance with 5 U.S.C. § 552(a)(4)(b).” (ECF No. 20:1).
Mr. Bothwell's Amended Complaint, Response to the Motion to Dismiss, and Sur-reply repeatedly affirm that this lawsuit concerns only FOIA #2523. See ECF Nos. 9, 20, & 25. Defendant's argument and evidence, however, revolve around Mr. Bothwell's alleged failure to timely appeal the November 26, 2018 response to FOIA #5847. This argument, in turn, relies on a finding that FOIA #5847 was actually the portion of FOIA #2523 which had been assigned a new number following the September 19, 2018 response/remand on FOIA #2523. But Defendant presents no evidence in support of this argument. Thus, the Court should conclude that as of September 19, 2018, Plaintiff fully exhausted his administrative remedies with respect to FOIA #2523, the only request pertinent to this lawsuit. As a result, the Court should reject Defendant's request for dismissal based on Plaintiff's alleged failure to exhaust his administrative remedies.
V. PLAINTIFF HAS STATED A CLAIM FOR RELIEF
Defendant has sought dismissal under a theory that Plaintiff's allegations are conclusory and he has failed to state a claim for relief under the FOIA. (ECF No. 18:710). The Court should conclude otherwise.
Federal jurisdiction under the Freedom of Information Act (FOIA) “is dependent on showing that an agency has (1) 'improperly' (2) 'withheld' (3) 'agency records.' "United States Department of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)). Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with FOIA's disclosure requirements. See 5 U.S.C. § 552; Banks v. U.S. Marshal, No. CIV-07-0229-F, 2007 WL 2238342, at *3 (W.D. Okla. Aug. 1, 2007).
Defendant contends that Plaintiff's Amended Complaint should be dismissed for failure to state a claim because “Plaintiff has entirely failed to allege how the Defendant improperly withheld agency records.” (ECF No. 18:7). According to Defendant: (1) it is unclear from Plaintiff's Amended Complaint exactly what documents he believes are being withheld; (2) Plaintiff failed to challenge the adequacy of Defendant's search for records, “so the reasonableness of DOJ's searches are not at issue in this case;” and (3) Plaintiff's mere belief that additional documents must exist is insufficient to state a claim. (ECF Nos. 18:8-9; 22:4-6).
Additionally, Defendant relies on the November 26, 2018 response as evidence that “certain requested documents simply do not exist.” (ECF No. 18:8). But as discussed, the November 26, 2018 response is not relevant to the instant case. See supra.
In the Amended Complaint, Plaintiff asserts two claims, specifically contending that the government is withholding documents relating to the appointment of Mr. Troester which Plaintiff believes to exist under 28 U.S.C. §§ 546(a), (d) & 5 U.S.C. § 3349(a)(1)-(3). (ECF No. 9). In the first claim, Mr. Bothwell acknowledges that the EOUSA “provided Troester's March 19, 1996 oath and a January 19, 2018 public notice explaining Troester's history as an AUSA for the WDOK, the First AUSA and Acting USA.” (ECF No. 9:8). But Plaintiff believes the January 19, 2018 public notice “clearly relied upon more information and public documents than a March 19, 1996 oath to an office Troester had served in since September 1995” which he believes to exist under 28 U.S.C. §§ 546(a), (d) (ECF No. 9:8).
In his second claim, Plaintiff challenges the responses he received to the two FOIA requests he submitted to the USAO-WDOK. According to Mr. Bothwell, “there is no question that a vacancy on the Office of the USA requires a submission reporting the date such vacancy occurred and the name of any person serving in an acting capacity along with when that service began under 5 U.S.C. § 3349(a)(1), (2), and (3).” (ECF No. 9:9).
And in the response to Defendant's Motion to Dismiss, Plaintiff further contends that he believes the documents relating to Mr. Troester's appointments exist under 28 U.S.C. §§ 542 and Article II § 2, Clause 2 of the United States Constitution. (ECF No. 20:5-10). In support of his argument, Plaintiff relies on appointment documentation for Mark Yancy as the type of information he believes to exist for Mr. Troester. See ECF No. 20:7-9; 25:7-8.
In Plaintiff's response to the Motion to Dismiss, he references his 333 pages of exhibits he submitted with his original Complaint as proof that the government is improperly withholding certain documents. (ECF No. 20:9). In so doing, Plaintiff acknowledged that the Court vacated the original Complaint and all attached exhibits, but argues that the Court's order did not “actually vacate' [the original Complaint.]”. Mr. Bothwell is wrong. The Court ordered Plaintiff to file an “Amended Complaint,” which superseded and vacated the original Complaint. See ECF No. 7. Mr. Bothwell cannot circumvent the Court's order by simply asserting a contrary position.
Defendant alleges that Plaintiff has not challenged the reasonableness of the government's search in response to his original FOIA requests, but Mr. Bothwell has done just that. Plaintiff has provided the Court with specific information regarding the statutory provisions under which he believes the records to exist, and he has provided an analogous example of documentation concerning another individual in support of his belief that similar information exists with respect to Mr. Troester. As a result, the Court should conclude that Plaintiff's allegations are specific enough to state a claim under the FOIA. VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that Defendant's Motion to Dismiss (ECF No. 18) be DENIED.
The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court by February 18, 2020 in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The parties are further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF REFERRAL
This Report and Recommendation does not terminate the referral by the District Judge in this matter.
ENTERED on January 28, 2020.