Jensen v. Department of the Navy

• Court: District Court, District of Columbia
• Decided: February 24, 2026
• Docket: Civil Action No. 2025-1908
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL S. JENSEN,

Plaintiff,

v. Case No. 1:25-cv-1908 (TNM)

DEPARTMENT OF THE NAVY,

Defendant.

MEMORANDUM ORDER

The U.S. Naval Academy expelled Michael Jensen two years ago. Since then, Jensen has

tried to collect records related to that decision. He began by sending Freedom of Information

Act and Privacy Act requests to several Navy entities. Dissatisfied with the responses he

received, Jensen turned to federal court. He asks the Court to order the agencies to provide the

records he seeks, citing FOIA, the Privacy Act, and a slew of other statutes. The Department of

the Navy moves to dismiss all but the FOIA claims. Because Jensen failed to exhaust his Privacy

Act claims and because FOIA offers an adequate alternative remedy to any other claim, the Court

grants that motion.

I.

A few years ago, a Naval Academy midshipman accused fellow midshipman Michael

Jensen of misconduct. See 2d Am. Compl. ¶ 11, ECF No. 34. The Academy convened a

disciplinary proceeding that led to Jensen’s expulsion. Id. ¶ 8. Jensen then began exploring civil

claims against the Navy. See id. ¶ 9. As part of his preparation, he gathered records from the

disciplinary process. Id. Jensen’s Navy defense counsel turned over an initial tranche of

documents, but notable gaps existed. See id. ¶¶ 9, 11–13.

1 To get those missing records, Jensen filed four FOIA and Privacy Act requests. He sent

his first two requests in April 2024—one each to the Naval Criminal Investigative Services

(“NCIS”) and the Academy. See id. ¶¶ 18, 19. NCIS responded after a month and later

supplemented its response. Id. ¶¶ 21, 27. While waiting for the Academy’s response to the first

request, Jensen filed two more. Id. ¶¶ 22–23; see id. ¶ 28. In June, Jensen asked the Navy Legal

Service Command for documents and got a response two months later. Id. ¶¶ 22, 24. And in

August, Jensen filed another request with the Academy. Id. ¶ 23.

In September, with two requests to the Academy outstanding, Jensen turned to federal

court. See id. ¶ 26. He began in the District of Maryland as part of a larger case against the

Navy. See Compl., ECF No. 1. Shortly after filing suit, Jensen finally heard from the Academy.

See 2d Am. Compl. ¶¶ 27–28. In response to Jensen’s initial request, the Academy released

several hundred pages of records, made some withholdings, and referred other materials to NCIS

“for processing and direct release.” Id. ¶ 28. As for the second request, the Academy forwarded

it to NCIS, which responded days later. Id. ¶ 27. Still, Jensen lacked the documents he wanted

most, so the lawsuit continued.

The parties eventually agreed to sever Jensen’s case and transfer it here. See Order

Granting Consent Mot. to Sever, ECF No. 29. Jensen then filed his operative Complaint. 2d

Am. Compl., ECF No. 34. It primarily alleges Privacy Act and FOIA violations, but it also

invokes “the Administrative Procedure Act, 5 U.S.C. §§ 701–706, the Mandamus and Venue Act,

28 U.S.C. § 1361, the All Writs Act, 28 U.S.C. § 1651, and the Declaratory Judgment Act, 28

U.S.C. § 2201.” 2d Am. Compl. ¶ 2. The Navy now seeks dismissal of all but the FOIA claims.

Mot. to Dismiss (“Mot.”), ECF No. 35. That motion is ripe.

2 II.

To survive a motion to dismiss under Rule 12(b)(1), a plaintiff must show that the Court

has subject matter jurisdiction over his claims. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.

2015). If the Court determines that it lacks jurisdiction, it must dismiss the claim or action. Fed.

R. Civ. P. 12(b)(1), 12(h)(3). Courts closely scrutinize plaintiffs’ factual allegations under Rule

12(b)(1) to ensure that jurisdiction is proper. See Nepal v. Dep’t of State, 602 F. Supp. 3d 115,

123 (D.D.C. 2022).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Hurd v.

District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (cleaned up). That standard demands

“factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts the

complaint’s factual allegations as true and grants the plaintiff “all inferences that can be derived

from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up).

III.

The Navy moves to dismiss all of Jensen’s claims except those that arise under FOIA.

Focusing primarily on the Privacy Act claims, the Navy argues that Jensen’s failure to exhaust

administrative remedies dooms these claims. As for the rest, the Navy says those claims fail

because FOIA supplies the appropriate pathway for seeking the records. Though the Navy

incorrectly describes the Privacy Act’s exhaustion requirement as jurisdictional, it is ultimately

correct that Jensen’s non-FOIA claims require dismissal.

3 A.

Consider first the Privacy Act claims. The Privacy Act gives an individual a right to

access most records that an agency maintains about him. 5 U.S.C. § 552a(d)(1). If an agency

“refuses to comply with an individual request” for records, the individual may sue in federal

district court. Id. § 552a(g)(1)(B). Jensen’s reliance on that cause of action here is premature. 1

Because Jensen failed to exhaust his administrative remedies, the Court dismisses his Privacy

Act claims under Rule 12(b)(6).

“A person seeking judicial review of an agency’s handling of his or her Privacy Act

request must actually exhaust the available administrative remedies.” Barouch v. Dep’t of

Justice, 962 F. Supp. 2d 30, 67 (D.D.C. 2013) (cleaned up). That applies to record-access claims

like Jensen’s. See 5 U.S.C. § 552a(g)(1)(B). In the D.C. Circuit’s words, Jensen “must initially

seek . . . access from the agency and even seek review within the agency before coming to

court.” Haase v. Sessions, 893 F.2d 370, 373 (D.C. Cir. 1990). That follows from the fact that

the statute requires agencies to adopt procedures for reviewing requests, including “for an appeal

within the agency of an initial adverse agency determination.” 5 U.S.C. § 552a(f)(4).

Jensen does not deny the exhaustion requirement. See Opp. to Mot. to Dismiss (“Opp.”)

at 9–12, ECF No. 38. And he admits that he did not pursue the appellate process the Department

of Defense makes available for Privacy Act requests. See id.; 32 C.F.R. § 310.6. Instead, Jensen

1 The Complaint cites both the Privacy Act’s record-access cause of action, 5 U.S.C. § 552a(g)(1)(B), and its catch-all cause of action, id. § 552a(g)(1)(D); see 2d Am. Compl. ¶ 68. But, as the Navy points out, the Privacy Act’s catch-all provision applies only when another cause of action does not. See Mot. at 17–21. Jensen ignores this argument and focuses on § 552a(g)(1)(B) in his brief. The Court follows suit. By failing to respond to the Navy’s argument, Jensen concedes any argument that § 552a(g)(1)(D) permits his suit. See LCvR 7(b); Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014). 4 offers a narrow defense: The Privacy Act’s exhaustion requirement is not jurisdictional, so the

Court should excuse it here. Opp. at 5–14.

Jensen’s premise is correct, but his conclusion does not follow. The exhaustion

requirement for a record-access claim is best understood as a prudential one. True, some courts

have deemed exhaustion a jurisdictional requirement for a record-access Privacy Act claim. See,

e.g., Stein v. SEC, 266 F. Supp. 3d 326, 336 (D.D.C. 2017); Reply at 3–6, ECF No. 41 (collecting

cases). “But the D.C. Circuit has never gone that far.” Bain v. Off. of Att’y Gen., 648 F. Supp. 3d

19, 42 (D.D.C. 2022). Precedent requires exhaustion but remains silent on whether that

requirement is jurisdictional. See Haase, 893 F.2d at 373; Nagel v. U.S. Dep’t of Health, Educ. &

Welfare, 725 F.2d 1438, 1441 (D.C. Cir. 1984).

Without binding precedent requiring the Court to consider exhaustion a jurisdictional

prerequisite, the Court concludes that exhaustion is non-jurisdictional. Accord Bain, 648 F.

Supp. 3d at 41–42. The term “exhaustion” refers to two distinct concepts that are sometimes

confused. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). First,

Congress itself can “require[] resort to the administrative process as a predicate to judicial

review.” Id. An exhaustion requirement of this sort means that a court lacks jurisdiction to hear

a claim unless the plaintiff has proceeded through the appropriate administrative channels. Id.

Although courts historically readily inferred such requirements, modern cases make clear that

jurisdictional exhaustion exists only when created by “sweeping and direct statutory language.”

Id. at 1248 (cleaned up); see Fort Bend Cnty. v. Davis, 587 U.S. 541, 547–50 (2019)

(emphasizing the need for caution in declaring a requirement jurisdictional).

When no such language exists, the second type of exhaustion comes into play. It is a

“judicially created doctrine” that requires parties to “exhaust available administrative remedies

5 before bringing their case to court.” Avocados Plus, 370 F.3d at 1247. Prudential exhaustion

requirements prevent premature interference with agency process, give parties and the courts the

benefit of the agency’s experience and expertise, and allow for the compilation of an adequate

record for review. See Wonders v. Dep’t of the Army Off. of Gen. Couns., 749 F. Supp. 3d 122,

130 (D.D.C. 2024), aff’d, 2025 WL 717386 (D.C. Cir. Feb. 28, 2025). Unlike jurisdictional

exhaustion, however, it may be waived in appropriate circumstances. See id. at 131. Courts

presume exhaustion of this stripe when the statute creates an administrative remedy and lacks

“clear, unequivocal” language making exhaustion a jurisdictional prerequisite. Avocados Plus,

370 F.3d at 1248 (cleaned up).

The language in the Privacy Act creating the record-access cause of action lends itself to

this latter kind of exhaustion. The statute does not include the “clear, unequivocal” language

mandating exhaustion that triggers jurisdictional limitations. Id. (cleaned up). The Act instead

nods to administrative exhaustion by creating a cause of action for a record-access claim only

once the agency has “refuse[d]” to comply with its obligations, 5 U.S.C. § 552a(g)(1)(B), and

separately requiring agencies to implement procedures for handling access requests, id.

§ 552a(e). Subtle language like this signals a prudential limit. See Avocados Plus, 370 F.3d at

1248.

But that conclusion does not save Jensen. Exhaustion is still a prudential precondition for

a record-access claim. See Haase, 893 F.2d at 373. Jensen insists that exhaustion would have

been futile, Opp. at 12, but neither of his two arguments on that front justify excusing his failure

to exhaust administrative remedies.

Jensen first presents administrative review as out of reach. He points out that the relevant

regulation permits review of the “denial of a request for access to records,” 32 C.F.R. § 310.6(c)

6 (emphasis added), and notes that the Academy had not responded to two requests when he filed

suit, Opp. at 11. This excuse paints an incomplete picture. Jensen does not dispute that he

received two “adverse determination[s] denying the request[s]” before the lawsuit that he could

have appealed. 32 C.F.R. § 310.6(a); see 2d Am. Compl. ¶¶ 21, 24; Opp. at 11–12. And because

Jensen’s requests are all related, administrative review of the ripe requests might have solved his

problems. Indeed, administrative review by a central authority is particularly suited to

remedying the bureaucratic run-around Jensen encountered when trying to determine which

Navy sub-component had his records. See, e.g., 2d Am. Compl. ¶ 14; Opp. at 4. More, the

Academy eventually responded to the outstanding requests. 2d Am. Compl. ¶¶ 27, 28. But

Jensen did not appeal those denials either.

This leads to Jensen’s second excuse. He argues he could not pursue administrative

recourse after he received the final responses because he had filed a lawsuit by that point, and

Department policy says that “[a]n appeal ordinarily will not be acted on if the request becomes a

matter of litigation.” 32 C.F.R. § 310.6(d); see Opp. at 11–12. The premise of this point is that

an individual can shortcut the administrative process by racing to the federal courthouse. Opp. at

11–12. Not so. The administrative exhaustion requirement “giv[es] agencies the opportunity to

correct their own errors” and “afford[s] parties and courts the benefits of agencies’ expertise.”

Avocados Plus, 370 F.3d at 1247. A quick filing that obviates those benefits makes no sense.

In short, Jensen offers no good reason for failing to exhaust his administrative remedies.

So his Privacy Act claims must be dismissed under Rule 12(b)(6). Accord Bain, 648 F. Supp. 3d

at 43.

7 B.

Turn now to Jensen’s remaining non-FOIA claims. The Complaint cites the APA, the

Mandamus and Venue Act, the All Writs Act, and the Declaratory Judgment Act as alternative

authorities for Jensen’s claims. 2d Am. Compl. ¶ 2. But Jensen has not stated a claim under any

of these statutes. And, in any event, he has forfeited such claims by failing to respond to the

Department’s arguments for dismissal.

Jensen cannot recover under any of these statutes because FOIA offers him a pathway to

the records he seeks. Start with the APA. That statute offers a cause of action only if “no other

adequate remedy in a court” exists. 5 U.S.C. § 704. And FOIA provides an adequate remedy to

someone seeking government records. See Elec. Priv. Info. Ctr. v. IRS, 910 F.3d 1232, 1244

(D.C. Cir. 2018). Of course, Jensen’s search for government records is the entire point of this

suit. See 2d Am. Compl. at 21–23. So any APA claim must be dismissed for failure to state a

claim. See Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 620 (D.C. Cir. 2017) (indicating that the

APA’s “adequate remedy bar” should be understood “as a requirement for a cause of action,” not

a jurisdictional demand). Possible FOIA relief also forecloses Jensen’s claims under the All

Writs Act and the Declaratory Judgment Act. See Isiwele v. Dep’t of Health & Hum. Servs., 85 F.

Supp. 3d 337, 352–53 (D.D.C. 2015). And the same is true of the mandamus claim—though the

flaw is jurisdictional for this claim. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir.

2016) (describing plaintiff’s burden to show that “no adequate alternative remedy exists” as a

jurisdictional requirement for a mandamus claim).

More, Jensen’s failure to respond to the Navy’s arguments independently requires

dismissal of these claims. Jensen does not address the Department’s argument that the non-

Privacy Act, non-FOIA claims fail because FOIA supplies an adequate remedy. Compare Mot.

8 at 21–25 with Opp. at 14–15. He instead offers a “stipulat[ion] that these causes of action need

not be maintained” if the Court allows his Privacy Act claims to proceed. Opp. at 15. That will

not do. Jensen’s silence operates as a concession. See, e.g., LCvR 7(b); Wannall v. Honeywell,

Inc., 775 F.3d 425, 428 (D.C. Cir. 2014). That provides another reason to dismiss these

miscellaneous claims.

IV.

To sum up where things stand, Jensen’s FOIA claims are all that remain. The Court

dismisses with prejudice his Privacy Act claims for failure to state a claim. His APA,

Declaratory Judgment Act, and All Writs Act claims are likewise dismissed with prejudice. And,

finally, the mandamus claim is dismissed without prejudice. Accordingly, it is

ORDERED that the Department’s [35] Partial Motion to Dismiss is GRANTED; it is

also

ORDERED that the Department answer the remaining operative Complaint within 14

days of this Order.

SO ORDERED. 2026.02.24 13:49:16 -05'00' Dated: February 24, 2026 TREVOR N. McFADDEN, U.S.D.J.