UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-633 (RWR) ) BOARD OF GOVERNORS OF THE ) FEDERAL RESERVE SYSTEM, ) ) Defendant. ) _____________________________ )
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in
Washington (“CREW”) filed a complaint under the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”), alleging that the Board
of Governors of the Federal Reserve System (“the Board”)
wrongfully failed to produce any agency records that the
plaintiff requested. The Board has moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint for failure to
state a claim. Because CREW did not exhaust its administrative
remedies, the defendant’s motion to dismiss, treated in part as a
motion for summary judgment, will be granted.1
1 The complaint also alleged that the Board improperly failed to respond to plaintiff’s request for expedited processing of its FOIA request. The Board has moved to dismiss that claim as moot. CREW acknowledges that the claim is now moot, and it will be dismissed. -2-
BACKGROUND
On March 3, 2009, CREW submitted a FOIA request to the Board
seeking expedited disclosure of records identifying each
business, individual, or entity to which the Board had provided
loans or other financial assistance from March 2008 to the
present under Section 13 of the Federal Reserve Act, 12 U.S.C.
§ 343, or any other authority of the Board. (Compl. ¶¶ 1-2, 24;
Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 2.)
The Board sent a letter to CREW dated March 6, 2009 acknowledging
receipt of the request, though not informing CREW whether the
Board approved CREW’s request for expedited processing. Crew
received the letter on March 9, 2009. (Pl.’s Opp’n to Def.’s
Mot. to Dismiss (“Pl.’s Opp’n”) at 5.) The Board alleges that
around the same time it acknowledged receiving the FOIA request,
the Board approved CREW’s requests to waive the fee associated
with FOIA requests and to expedite processing, but did not then
inform CREW of this decision, expecting that it could respond to
the request for expedition within the required ten calendar days
under 5 U.S.C. § 552(a)(6)(E)(ii)(I). (Def.’s Mem. at 2, n. 1.)
CREW states that because it had not received a substantive
response to the document request by what it considered the 20th
business day, Tuesday, March 31, 2009, it filed the instant -3-
action on Monday, April 6, 2009.2 However, the Board states that
on March 31, 2009, it notified CREW that it was going to extend
its period of response by ten days, as is allowed under 5 U.S.C.
§ 552(a)(6)(B)(i), because it needed to consult with another
agency and/or other components of the Board. CREW acknowledges
that it received a letter from the Board informing CREW about the
ten-day extension, but CREW alleges that the letter was
postmarked Thursday, April 2, 2009. (See Def.’s Mem. at 2-3;
Pl.’s Opp’n at 6-7.) The Board mailed a letter substantively
responding to CREW on April 14, 2009, stating that the Board
would provide some of the requested information, but that it
would withhold approximately 11,054 pages of responsive
information under FOIA exemptions 4 and 5. The letter notified
CREW of its right to file an administrative appeal under the
Board’s rules. The Board sent the responsive documents to CREW
on April 17, 2009. (Def.’s Mem. at 3.) CREW filed no appeal.
(Id. at 2.)
This action, filed on April 6, 2009, alleges that the Board
failed to produce any records within the statutory time limit for
processing CREW’s request. (Compl. ¶ 38.) The Board moves to
dismiss under Federal Rule of Civil Procedure Rule 12(b)(6)
2 The Board’s March 6, 2009 letter to CREW provided a phone number to call to obtain information about the status of CREW’s request, but CREW made no inquiry between Tuesday, March 31 and Friday, April 3, 2009. (Def.’s Reply at 5.) -4-
because CREW failed to exhaust its administrative remedies before
filing suit. (See Def.’s Mem. at 4-5.) CREW argues that it
constructively exhausted its administrative remedies because the
Board did not respond to its request within 20 business days of
March 3, 2009, the date that CREW submitted its request. (Pl.’s
Opp’n at 5.)
DISCUSSION
Generally, “motions to dismiss for failure to exhaust
administrative remedies are . . . appropriately analyzed under
Rule 12(b)(6)[,]” which applies to a failure to state a claim for
which relief can be granted. Marshall v. Honeywell Tech.
Solutions, Inc., 536 F. Supp. 2d 59, 64 n.6 (D.D.C. 2008)
(quoting Hazel v. Wash. Metro. Transit Auth., Civil Action No.
02-1375 (RWR), 2006 WL 2024966, at *3 (D.D.C. Dec. 4, 2006)); see
also Lewis v. United States Dep’t of Justice, 609 F. Supp. 2d 80,
83 (D.D.C. 2009). “In order to survive a motion to dismiss under
Rule 12(b)(6), the allegations stated in the contested portion of
the plaintiff’s complaint ‘must be enough to raise a right to
relief above the speculative level[.]’” Demery v. Montgomery
County, 602 F. Supp. 2d 206, 212 (D.D.C. 2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “when
‘matters outside the pleadings are presented to and not excluded
by the court’ on a motion to dismiss under Rule 12(b)(6), ‘the
motion must be treated as one for summary judgment[.]’” Highland -5-
Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82
(D.D.C. 2009) (quoting Fed. R. Civ. P. 12(d)). “In particular
. . . where both parties submit material outside the pleadings
and ‘the parties are not taken by surprise or deprived of a
reasonable opportunity to contest facts averred outside the
pleadings and the issues involved are discrete’ legal issues, the
court may convert [a motion to dismiss] to a motion for summary
judgment ‘without providing notice or the opportunity for
discovery to the parties.’” Highland Renovation Corp., 620 F.
Supp. 2d at 82 (quoting Tunica-Biloxi Tribe of La. v. United
States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and Smith v.
United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C. 2007)).
Because both parties have submitted declarations outside of the
pleadings that have not been excluded, the Board has completed
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) CITIZENS FOR RESPONSIBILITY ) AND ETHICS IN WASHINGTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-633 (RWR) ) BOARD OF GOVERNORS OF THE ) FEDERAL RESERVE SYSTEM, ) ) Defendant. ) _____________________________ )
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in
Washington (“CREW”) filed a complaint under the Freedom of
Information Act, 5 U.S.C. § 552 (“FOIA”), alleging that the Board
of Governors of the Federal Reserve System (“the Board”)
wrongfully failed to produce any agency records that the
plaintiff requested. The Board has moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the complaint for failure to
state a claim. Because CREW did not exhaust its administrative
remedies, the defendant’s motion to dismiss, treated in part as a
motion for summary judgment, will be granted.1
1 The complaint also alleged that the Board improperly failed to respond to plaintiff’s request for expedited processing of its FOIA request. The Board has moved to dismiss that claim as moot. CREW acknowledges that the claim is now moot, and it will be dismissed. -2-
BACKGROUND
On March 3, 2009, CREW submitted a FOIA request to the Board
seeking expedited disclosure of records identifying each
business, individual, or entity to which the Board had provided
loans or other financial assistance from March 2008 to the
present under Section 13 of the Federal Reserve Act, 12 U.S.C.
§ 343, or any other authority of the Board. (Compl. ¶¶ 1-2, 24;
Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”) at 2.)
The Board sent a letter to CREW dated March 6, 2009 acknowledging
receipt of the request, though not informing CREW whether the
Board approved CREW’s request for expedited processing. Crew
received the letter on March 9, 2009. (Pl.’s Opp’n to Def.’s
Mot. to Dismiss (“Pl.’s Opp’n”) at 5.) The Board alleges that
around the same time it acknowledged receiving the FOIA request,
the Board approved CREW’s requests to waive the fee associated
with FOIA requests and to expedite processing, but did not then
inform CREW of this decision, expecting that it could respond to
the request for expedition within the required ten calendar days
under 5 U.S.C. § 552(a)(6)(E)(ii)(I). (Def.’s Mem. at 2, n. 1.)
CREW states that because it had not received a substantive
response to the document request by what it considered the 20th
business day, Tuesday, March 31, 2009, it filed the instant -3-
action on Monday, April 6, 2009.2 However, the Board states that
on March 31, 2009, it notified CREW that it was going to extend
its period of response by ten days, as is allowed under 5 U.S.C.
§ 552(a)(6)(B)(i), because it needed to consult with another
agency and/or other components of the Board. CREW acknowledges
that it received a letter from the Board informing CREW about the
ten-day extension, but CREW alleges that the letter was
postmarked Thursday, April 2, 2009. (See Def.’s Mem. at 2-3;
Pl.’s Opp’n at 6-7.) The Board mailed a letter substantively
responding to CREW on April 14, 2009, stating that the Board
would provide some of the requested information, but that it
would withhold approximately 11,054 pages of responsive
information under FOIA exemptions 4 and 5. The letter notified
CREW of its right to file an administrative appeal under the
Board’s rules. The Board sent the responsive documents to CREW
on April 17, 2009. (Def.’s Mem. at 3.) CREW filed no appeal.
(Id. at 2.)
This action, filed on April 6, 2009, alleges that the Board
failed to produce any records within the statutory time limit for
processing CREW’s request. (Compl. ¶ 38.) The Board moves to
dismiss under Federal Rule of Civil Procedure Rule 12(b)(6)
2 The Board’s March 6, 2009 letter to CREW provided a phone number to call to obtain information about the status of CREW’s request, but CREW made no inquiry between Tuesday, March 31 and Friday, April 3, 2009. (Def.’s Reply at 5.) -4-
because CREW failed to exhaust its administrative remedies before
filing suit. (See Def.’s Mem. at 4-5.) CREW argues that it
constructively exhausted its administrative remedies because the
Board did not respond to its request within 20 business days of
March 3, 2009, the date that CREW submitted its request. (Pl.’s
Opp’n at 5.)
DISCUSSION
Generally, “motions to dismiss for failure to exhaust
administrative remedies are . . . appropriately analyzed under
Rule 12(b)(6)[,]” which applies to a failure to state a claim for
which relief can be granted. Marshall v. Honeywell Tech.
Solutions, Inc., 536 F. Supp. 2d 59, 64 n.6 (D.D.C. 2008)
(quoting Hazel v. Wash. Metro. Transit Auth., Civil Action No.
02-1375 (RWR), 2006 WL 2024966, at *3 (D.D.C. Dec. 4, 2006)); see
also Lewis v. United States Dep’t of Justice, 609 F. Supp. 2d 80,
83 (D.D.C. 2009). “In order to survive a motion to dismiss under
Rule 12(b)(6), the allegations stated in the contested portion of
the plaintiff’s complaint ‘must be enough to raise a right to
relief above the speculative level[.]’” Demery v. Montgomery
County, 602 F. Supp. 2d 206, 212 (D.D.C. 2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “when
‘matters outside the pleadings are presented to and not excluded
by the court’ on a motion to dismiss under Rule 12(b)(6), ‘the
motion must be treated as one for summary judgment[.]’” Highland -5-
Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82
(D.D.C. 2009) (quoting Fed. R. Civ. P. 12(d)). “In particular
. . . where both parties submit material outside the pleadings
and ‘the parties are not taken by surprise or deprived of a
reasonable opportunity to contest facts averred outside the
pleadings and the issues involved are discrete’ legal issues, the
court may convert [a motion to dismiss] to a motion for summary
judgment ‘without providing notice or the opportunity for
discovery to the parties.’” Highland Renovation Corp., 620 F.
Supp. 2d at 82 (quoting Tunica-Biloxi Tribe of La. v. United
States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and Smith v.
United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C. 2007)).
Because both parties have submitted declarations outside of the
pleadings that have not been excluded, the Board has completed
its document production, and CREW has taken no appeal from it,
the motion will be treated as one for summary judgment.
Summary judgment is appropriately granted when the moving
party demonstrates that there is no genuine issue as to any
material fact and that moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). “In considering a motion
for summary judgment, [a court is to draw] all ‘justifiable
inferences' from the evidence . . . in favor of the nonmovant.”
Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189
(D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. -6-
242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “The relevant inquiry ‘is the
threshold inquiry of determining whether there is a need for a
trial - - whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.’” Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312
(D.D.C. 2009) (quoting Anderson, 477 U.S. at 250). A genuine
issue is present where the “evidence is such that a reasonable
jury could return a verdict for the non-moving party,” in
contrast to a situation where the evidence is “so one-sided that
one party must prevail as a matter of law.” Anderson, 477 U.S.
at 248, 252.
“[E]xhaustion of administrative remedies is a mandatory
prerequisite to a lawsuit under FOIA[.]” Wilbur v. CIA, 355 F.3d
675, 676 (D.C. Cir. 2004) (internal quotations omitted). While
exhaustion is not properly referred to as a “jurisdictional”
issue, FOIA’s “administrative scheme favors treating failure to
exhaust as a bar to judicial review.” Id. at 677 (internal
quotations omitted). When an agency fails to answer a request
for information within 20 days, the requester has constructively
exhausted its administrative remedies and judicial review is
allowed. See 5 U.S.C. § 552(a)(6)(C); Judicial Watch, Inc. v.
Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (citing Oglesby v. -7-
U.S. Dep’t of Army, 920 F.2d 57, 64-65 (D.C. Cir. 1990)).
However, when an agency responds to the request after the
twenty-day statutory window but before the requester initiates a
lawsuit, the administrative exhaustion requirement still applies
and judicial review is barred. Judicial Watch, 326 F.3d at 1310.
The constructive exhaustion principle is not designed to
encourage a requestor to file a lawsuit in order to replace an
agency’s authority with judicial oversight. See Lowe v. Drug
Enforcement Agency, Civil Action No. 06-1133 (CKK), 2007 WL
2104309, at *4 (D.D.C. July 22, 2007) (citing Oglesby, 920 F.2d
at 64 n.8). “Thus, a finding of constructive exhaustion is not
appropriate where it would be ‘contrary to orderly procedure and
good administration and unfair to those who are engaged in the
tasks of administration to decide an issue which [an agency]
never had a fair opportunity to resolve prior to being ushered
into litigation.’” Lowe, 2007 WL 2104309 at *4 (quoting Dettmann
v. U.S. Dep't of Justice, 802 F.2d 1472, 1476 (D.C. Cir. 1986))
(internal quotations omitted). An agency is allowed to extend
the deadline for its response by an additional ten-days in
“unusual circumstances,” including, as the Board relied upon
here, “the need for consultation . . . with another agency having
a substantial interest in the determination of the request or
among two or more components of the agency having substantial
subject-matter interest therein.” 5 U.S.C. § 552(a)(6)(B)(i). -8-
The Board asserts that on March 31, 2009, it notified CREW that
it was going to extend its period of response by ten days because
it needed to consult with another agency and/or other components
of the Board. CREW acknowledges that it received a letter from
the Board of Governors informing CREW about the ten-day
extension, but CREW alleges that the letter was postmarked
April 2, 2009, and that it did not receive the Board’s letter
until April 6, 2009, the same date it filed this action. (See
Def.’s Mem. at 2-3; Pl.’s Opp’n at 6-7.)
As an initial matter, CREW does not provide any authority
for the proposition that the operative date of the Board’s
response should be determined by the date that CREW received it,
as opposed to the date that the Board sent it. Regardless
whether the date of March 31, 2009, or the date of April 2, 2009,
is used as the date that the Board is deemed to have sent the
letter, the Board “responded” by placing in the mail written
notice regarding its ten-day working extension of its deadline to
respond to CREW’s request before CREW filed this action. (See
Def.’s Mem. Ex. 1, Thro Decl. at ¶ 9; Pl.’s Opp’n Ex. 3, Weismann
Decl. at ¶ 5.) Administrative exhaustion, then, was still a
prerequisite to maintaining a suit. Judicial Watch, 326 F.3d at
1310. It would be contrary to orderly procedure and good
administration of FOIA cases to entertain a suit filed
prematurely and to excuse CREW from having to exhaust its -9-
administrative remedies in this case. Since CREW did not exhaust
its administrative remedies before filing this suit, and chose
not to do so after the Board completed its responsive document
production, the Board’s motion to dismiss for failure to exhaust
administrative remedies, treated as a motion for summary
judgment, will be granted.
CONCLUSION
Because this court lacks jurisdiction over the claim
regarding expedited processing,3 and because the plaintiff failed
to exhaust its administrative remedies, the defendant’s motion
[4] to dismiss, treated in part as a motion for summary judgment,
will be granted. A final order accompanies this memorandum
opinion.
SIGNED this 19th day of November, 2009.
/s/ RICHARD W. ROBERTS United States District Judge
3 While CREW seeks in a footnote attorneys’ fees associated with the claim (see Pl.’s Opp’n at 12 n.10), CREW provides no legal support for such relief, nor does it explain why it did not call the Board using the phone number the Board provided to check the status of its request before incurring the expenses of filing the claim. By that point, expedition had been granted.