This is because the federal government is not considered an “employer” under the ADA. See Sindram v. Fox, 374 Fed.Appx. 302, 305 (3d Cir. 2010) (“The text of the [ADA] creates federal rights but does not include federal agencies or employees within its reach”).

This is true because that statute does not create a private cause of action. See Mittelstaedt v. Bd. of Trs. of Univ. of Ark., 487 F.Supp. 960, 965 (E.D. Ark. 1980); see also Sindram v. Fox, 374 Fed.Appx. 302, 305 (3d Cir. 2010) (per curiam). His claims also fail under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. section 631(a), because the ADEA only applies to employment discrimination, and Hardy is not old enough to qualify under the Act.

While the Fifth Circuit has not expressly interpreted the plain language of Section 1981's "under color of State law" requirement, other Courts of Appeal have held that it excludes federal actors. Magassa, 52 F.4th at 1163 (9th Cir. 2022); Sindram v. Fox, 374 F. App'x 302, 304 (3d Cir. 2010) ("[Section 1981] does not protect against discrimination under color of federal law."); Nghiem v. U.S. Dep't of Veterans Affs., 323 F. App'x 16, 18 (2d Cir. 2009) ("[Section 1981] appl[ies] only to state actors, and not federal officials."); Kimboko v. United States, 26 F. App'x 817, 819 (10th Cir. 2001) ("[Section 1981] is inapplicable to alleged discrimination under color of federal law."); Davis v. U.S. Dep't of Just., 204 F.3d 723, 725 (7th Cir. 2000) ("[B]y its language, § 1981 does not apply to actions taken under color of federal law."); Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998) ("Section 1981 provides a cause of action for individuals subjected to discrimination by private actors and discrimination under color of state law, but does not provide a cause of action for discrimination under color of federal law.").

The Age Discrimination Act provides that "'no person in the United State shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.'" Sindram v. Fox, 374 Fed.Appx. 302, 305 (3d Cir. 2010) (quoting 42 U.S.C. § 6102).

See, e.g., Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir. 2005); Davis-Warren Auctioneers v. FDIC, 215 F.3d 1159, 1161 (10th Cir. 2000); Davis v. United States Dep't of Justice, 204 F.3d 723, 725 (7th Cir. 2000); Lee v. Hughes, 145 F.3d 1272, 1277 (11th Cir. 1998).Sindram v. Fox, 374 F. App'x 302, 304 (3d Cir. Feb. 19, 2010).

As noted by Mr. Daniels, the authority cited by Chugach is misplaced, as all cases cited by Chugach involve an actual federal government agency. See, e.g. DynaLantic Corp. v. U.S. Dept. of Defense , 885 F.Supp.2d 237, 291 (D.D.C.2012) (dismissing § 1981 claim because Defendant Department of Defense is a federal agency, and thus operating under the color of federal law); Williams v. Glickman , 936 F.Supp. 1, 3 (D.D.C.1996) (dismissing § 1981 claim based on federal farm loan applications); see alsoSindram v. Fox , 374 Fed.Appx. 302, 304 (3d Cir.2010) (dismissing § 1981 claim because Defendant Department of Education is a federal agency, and thus operating under the color of federal law). Chugach has cited to no authority, and the Court is aware of none, that has deemed a private government contractor as an instrumentality of the federal government or otherwise operating under the color of federal law.

hat fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has indicated that Rule 12(b)(6) is the appropriate procedural vehicle by which to contest a party's timely exhaustion of administrative remedies under FOIA. McDonnell v. United States, 4 F.3d 1227, 1240 n.9 (3d Cir. 1993) ("A failure to exhaust administrative remedies does not per se deprive the court of subject matter jurisdiction."); see Flaherty v. President of the U.S., 796 F. Supp. 2d 201, 207 (D.D.C. 2011) (citing Hildalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003)) (holding that dismissal of a FOIA action for failure to exhaust administrative remedies is properly accomplished under Rule 12(b)(6) instead of Rule 12(b)(1)); Stuler v. IRS, No. 10-1342, 2011 WL 2516407, at *1 (W.D. Pa. June 23, 2011) (same), aff'd, 522 F. App'x 162 (3d Cir. 2013); Sindram v. Fox, No. 07-0222, 2007 WL 3225995, at *6 (E.D. Pa. Oct. 31, 2007) (same), aff'd, 374 F. App'x 302 (3d Cir. 2010). But see Degenes v. FBI, No. 11-916, 2012 WL 4478358, at *6 (W.D. Pa. Sept. 27, 2012) (dismissing FOIA claims for failure to exhaust administrative remedies under Rule 12(b)(1)); Nunez v. United States, No. 3:CV-07-1147, 2009 WL 222661, at *3-4 (M.D. Pa. Jan. 29, 2009) (same).

Before a plaintiff may seek relief from a district court for an executive agency's denial of a FOIA request, said plaintiff must first exhaust all administrative remedies. McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir. 1993) (holding that district court correctly declined to exercise subject matter jurisdiction where plaintiff failed to exhaust administrative remedies prior to filing suit); Pellegrino v. U.S. Transp. Sec. Admin., 855 F.Supp.2d 343, 365 (E.D. Pa. 2012); Berg v. Barack Obama, 574 F.Supp.2d 509, 527 (E.D. Pa. 2008); 5 U.S.C. §552(a)(6)(A)(i). Under FOIA, a plaintiff must first file a request with the requisite executive agency and, if the request is denied, must fully exhaust administrative appeals before commencing an action in federal court. Id.; see also Sindram v. Fox, 374 F. App'x 302, 304 (3d Cir. 2010) (affirming the dismissal of a FOIA action for failure to exhaust administrative remedies). As stated, Plaintiff submitted a FOIA application dated September 12, 2013, which the Bureau of Prisons received on or about September 23, 2013, four days after Plaintiff commenced this action.

McDonnell, 4 F.3d at 1240 (holding that district court correctly declined to exercise subject matter jurisdiction where plaintiff failed to exhaust administrative remedies prior to filing suit); Pellegrino v. U.S. Transp. Sec. Admin., 855 F.Supp.2d 343, 365 (E.D. Pa. 2012); Berg v. Barack Obama, 574 F.Supp.2d 509, 527 (E.D. Pa. 2008); 5 U.S.C. §552(a)(6)(A)(i). Under FOIA, this requires a plaintiff to first file a request with the requisite executive agency and then fully exhaust administrative appeals before commencing an action in federal court. Id.; see also Sindram v. Fox, 374 F. App'x 302, 304 (3d Cir. 2010) (affirming dismissal of FOIA action for failure to exhaust administrative remedies). As stated, in his initial FOIA request, Plaintiff sought financial reimbursement records for witnesses and the government prosecutors involved in his criminal proceeding.

However, in determining whether the ADA created a private cause of action against a federal agency or its employees for failure to remedy an alleged violation of the ADA, the Third Circuit found that the ADA contains a comprehensive remedial scheme. SeeSindram v. Fox, 374 Fed.Appx. 302, 305 (3d Cir.2010) (“Congress also created a comprehensive remedial scheme that does not include a cause of action against a federal agency or its employees.”). To determine whether the ADEA's remedial scheme precludes Section 1983 actions, the Ninth Circuit in Ahlmeyer stated that “courts must analyze the comprehensiveness of a statute” and the statute's “corresponding preclusion of other remedies” to determine whether the statute should be read as precluding Section 1983 actions. 555 F.3d at 1060.