1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOYCE M. BURRUS, Case No. 2:20-cv-00845-KJM-JDP (PS) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT FOREST SERVICE’S 13 v. MOTION TO DISMISS BE GRANTED
14 U.S. DEPARTMENT OF ECF No. 28 AGRICULTURE (USDA) FOREST 15 SERVICE, et al., OBJECTIONS DUE WITHIN 14 DAYS 16 Defendants. 17 18 Plaintiff Joyce M. Burrus brought this action against her former employer, the U.S. Forest 19 Service (“Forest Service”), and various individual defendants, in connection with disputes 20 relating to her health benefits and to three debts assessed by the Forest Service for salary 21 overpayments and unpaid healthcare premiums. Plaintiff seeks relief under the Freedom of 22 Information Act, the Privacy Act, the Declaratory Judgments Act, the Family and Medical Leave 23 Act, and various federal regulations. No individual defendants have appeared. Defendant Forest 24 Service now moves to dismiss for lack of subject matter jurisdiction and for failure to state a 25 claim. I recommend that the court dismiss the case in its entirety because the court lacks 26 jurisdiction over her claims relating to decisions over her benefits and pay, she failed to exhaust 27 her administrative remedies before filing her claims for access to records, and the remaining 28 1 claims fail to state a claim. 2 Background 3 Plaintiff is a former federal employee with over thirty years of employment at the Forest 4 Service, a component of the United States Department of Agriculture (“USDA”). ECF No. 1 at 4. 5 Beginning in 2012, she took a series of extended leaves of absence under the Family and Medical 6 Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, and under the Forest Service’s Voluntary Leave 7 Transfer Program (“VLTP”), to care for her husband, who was undergoing treatment for cancer. 8 Id. at 4-6. The VLTP permits the transfer of “unused accrued annual leave of one agency officer 9 or employee . . . for use by another agency officer or employee who needs such leave because of 10 a medical emergency.” 5 C.F.R. § 630.901. When an employee exhausts all leave options and 11 enters unpaid leave status, he or she may choose to continue certain benefits; to do this, the 12 employee must either pay his or her premiums or incur a debt to the agency. Id. at § 890.502(b). 13 In June 2016, plaintiff used the last of her leave donations under the VLTP and entered 14 leave without pay status. ECF No. 1-2 at 1; ECF No. 1-4 at 45. Shortly thereafter, she elected to 15 continue her Federal Employee Health Benefits (“FEHB”) coverage without paying premiums; as 16 a result, between June 2016 and March 2018, she incurred a debt of $18,377. See ECF No. 1-2 at 17 4; ECF No. 1-4 at 45. She disputes this debt, claiming that because defendants terminated her 18 healthcare benefits without adequate notice in May 2017, she was improperly charged for at least 19 a portion of the premiums. 1 ECF No. 1 at 17. 20 Plaintiff also challenges two debts for overpayment of salary in the amounts of $5,672 and 21 $1,791. ECF No. 1 at 4. A letter from a Forest Service representative indicates that plaintiff 22 received new leave donations at the end of 2016; when pay staff “rushed to process the corrected 23 timesheets” to reflect the additional leave, plaintiff “was paid twice for four pay periods in 2016,” 24 causing her to incur the first overpayment debt of $5,672. ECF No. 1-4 at 45. Plaintiff does not 25
1 In addition to defendant Forest Service, the movant here, plaintiff names in her 26 complaint six individual defendants, all apparently Forest Service employees, and “Does 1-100.” 27 In its briefing, the U.S. Department of Justice occasionally argues on behalf of “defendants,” see ECF No. 28-1 at 10, and it seeks dismissal of the entirety of plaintiff’s suit, including the portion 28 directed at individual defendants—though none of the individual defendants have appeared. 1 appear to dispute the accuracy of the overpayment amount, but she objects to the lack of a hearing 2 and complains that defendants failed to provide her with information and records justifying their 3 recoupment of the overpayment. ECF No. 1 at 7 & 20-21. Plaintiff learned of the second salary- 4 overpayment debt, for $1,791, in February 2019, when defendant Lawson informed her that the 5 Forest Service had erroneously paid her during the 2018-19 government shutdown. Id. at 11 & 6 23. She alleges that she “did not receive [the] alleged salary overpayment” because it was issued 7 to a bank account that had been closed. Id. at 23. 8 Plaintiff brings six claims under: the Privacy Act, 5 U.S.C. § 552a; the Freedom of 9 Information Act, 5 U.S.C. § 552 (“FOIA”); the Federal Declaratory Judgment Act, 28 U.S.C. 10 § 2201; the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654; and several federal 11 regulations. She challenges three debts and the termination of her healthcare benefits, and she 12 makes claims relating to the provision and accuracy of certain information.2 13 Throughout the complaint, plaintiff broadly alleges that defendants violated her rights 14 under FOIA and the Privacy Act, for example by failing “to provide [her] with the information 15 the Agency relied upon to cancel her health benefits and that support the Agency’s assertions of 16 alleged debts to the government.” Id. at 29. In addition to seeking records and other information, 17 she asks that the court: expunge or amend any “inaccurate and/or derogatory” records, award her 18 damages, and cancel any erroneous debts to the Forest Service. Id. at 31. She identifies an 19 October 2018 letter to the USDA Forest Service Director, Ted Gutman, as a request for 20 information and assistance, and in her opposition she argues that a portion of this letter constitutes
21 2 Specifically, her first and second claims challenge (1) the cancellation of her healthcare benefits in 2017 and (2) the related $18,377 debt for unpaid premiums; she seeks damages, 22 recission of the debt, and amendment of any record of the debt under the Privacy Act. Id. at 14- 23 17. Her second claim also alleges that defendants violated either the Privacy Act or FOIA by “failing to provide accurate and reliable information to support the charges.” Id. at 17. Her third 24 claim alleges violations of the Privacy Act and of various regulations and procedures as a result of defendants’ “fail[ure] to provide [her] with accurate and reliable information pertaining to an 25 alleged salary overpayment in the amount of $5,672.” Id. at 22. In her fourth claim, she alleges that defendants “failed to take corrective action(s) pertaining to [her] alleged salary overpayment 26 in the amount of $1,791.” Id. at 23. And her fifth and sixth claims respectively allege negligence 27 and retaliation pertaining to her cumulative adverse employment actions and eventual termination in July 2018, though she does not appear to allege a statutory vehicle for these claims other than 28 the Privacy Act. Id. at 24-28. 1 a proper request for records under FOIA. ECF No. 1 at 10; ECF No. 1-3 at 65.3 The letter states 2 in its first paragraph that “[t]his is a formal request for assistance in the reinstatement of my 3 health benefits and verification of the validity of debts owed to the government (salary 4 overpayment in the amount of $5,672.55 and $19,000 [in] health benefits).” ECF No. 1-3 at 62. 5 The portion requesting access to documents, which appears on page four of six, reads: 6 Provided below is a request for information; I am requesting that the Agency provide an explanation as to the authorities that 7 permitted the action/inactions taken against me while I was an 8 approved participant in the Voluntary Leave Transfer Program. Additionally, please provide the Agency’s supporting 9 documentation (to include but not limited to reports such as Time and Attendance (T&A) reports, NFC generated reports, etc., and/or 10 directives) that was relied upon to support the adverse actions taken against me and what corrective action(s), if applicable, the 11 Agency plans to take. 12 13 Id. at 65. 14 Defendant Forest Service moves to dismiss for lack of subject matter jurisdiction and for 15 failure to state a claim. ECF No. 28. The Forest Service argues that the court lacks subject 16 matter jurisdiction over any claims challenging the fact or amount of any debts related to 17 plaintiff’s pay or benefits because they are preempted by the Civil Service Reform Act 18 (“CSRA”). ECF No. 28-1 at 8. Separately, the Forest Service argues that because plaintiff 19 “requested correction not of an error of fact, but of an error of judgment[,]” she has failed to state 20 a claim under the record-amendment provisions of the Privacy Act. Id. at 6 (quoting Blevins v. 21 Plummer, 613 F.2d 767 (9th Cir. 1980)). The Forest Service further argues that because the it has 22 cancelled the $1,791 debt for salary overpayment and a portion of the $18,377 healthcare 23 premium debt, claims arising from those debts should be dismissed as moot under Rule 12(b)(1). 24 Id. at 9. In support of this mootness argument, the Forest Service introduces a declaration from 25 Jennifer Thomas, “Branch Supervisor, Human Resources, Pay and Leave,” attesting to the current 26 3 Plaintiff also sent her letter to the following individuals: Randy Moore, Regional 27 Forester, USDA Forest Service, Pacific Southwest Region; Gene Blankenbaker, Deputy Director, ASC-HRM; Dwayne Brown, Supervisory HR Specialist (Pay); Patrick Petracca, Program 28 Manager (Benefits). ECF No. 1-3 at 62. 1 status of each debt. ECF No. 28-3 at 2. Finally, the Forest Service argues that plaintiff’s October 2 2018 letter was not a proper FOIA or Privacy Act request, and that plaintiff therefore failed to 3 exhaust her administrative remedies. ECF No. 28-1 at 5-7. 4 Legal Standards 5 A. Rule 12(b)(6) Standards 6 A complaint may be dismissed for “failure to state a claim upon which relief may be 7 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 8 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 9 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 10 pleads factual content that allows the court to draw the reasonable inference that the defendant is 11 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 12 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it 13 requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 14 678. 15 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 16 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 17 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 18 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 19 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal 20 under Rule 12(b)(6) can be based on either: (1) lack of a cognizable legal theory, or 21 (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. 22 Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. 23 Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). 24 B. Rule 12(b)(1) Standards 25 A jurisdictional challenge under Rule 12(b)(1) of the Federal Rules of Civil Procedure can 26 be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a 27 facial challenge, the moving party asserts that the allegations in the complaint are “insufficient on 28 their face” to establish federal jurisdiction. Id. “Whether subject matter jurisdiction exists 1 therefore does not depend on resolution of a factual dispute, but rather on the allegations in [the] 2 complaint.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The court must presume the 3 truth of plaintiff’s factual allegations “and draw all reasonable inferences in his favor.” Doe v. 4 Holy, 557 F.3d 1066, 1073 (9th Cir. 2009). Nevertheless, plaintiff bears the burden of 5 establishing subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 6 375, 377 (1994). 7 In a factual challenge, the moving party “disputes the truth of the allegations that, by 8 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. The court 9 does not simply accept the allegations in the complaint as true. Id. Instead, “when challenged on 10 allegations of jurisdictional facts, the parties must support their allegations by competent proof,” 11 Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010), and the court makes findings of fact, resolving 12 any material factual disputes by independently evaluating the evidence, Friends of the Earth v. 13 Sanderson Farms, Inc., 992 F.3d 939, 944-45 (9th Cir. 2021). 14 “A document filed pro se is to be liberally construed, and a pro se complaint, however 15 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 16 lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 17 Discussion 18 A. Civil Service Reform Act 19 The court must consider whether the CSRA preempts certain of plaintiff’s claims. 20 “Congress enacted the CSRA in 1978 to replace the old civil service system, an ‘outdated 21 patchwork of statutes and rules built up over almost a century . . .[,] with an integrated scheme of 22 administrative and judicial review, designed to balance the legitimate interests of the various 23 categories of federal employees with the needs of sound and efficient administration.’” Mangano 24 v. United States, 529 F.3d 1243, 1245 (9th Cir. 2008) (quoting United States v. Fausto, 484 U.S. 25 439, 444 (1988)). The resulting “remedial scheme is both exclusive and preemptive,” id. at 1246, 26 providing for the sole remedy for any issue that “falls within the scope of the CSRA’s ‘prohibited 27 personnel practices,’” Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) 28 (quoting 5 U.S.C. § 2302), “even if no remedy [is] available . . . under the CSRA,” Collins v. 1 Bender, 195 F.3d 1076, 1079 (9th Cir. 1999). The statute defines prohibited personnel practices 2 as “any ‘personnel action’ taken by someone in authority that violates one of twelve enumerated 3 practices.” Mangano v. United States, 529 F.3d 1243, 1247 (9th Cir. 2008) (quoting 5 U.S.C. 4 § 2302(b)). “The definition of ‘personnel action’ is, necessarily, broad,” id. at 1247, including 5 appointments, promotions, transfers, changes in duties or working conditions, and “decision[s] 6 concerning pay, benefits, or awards,” 5 U.S.C. §§ 2302(a)(2)(A)(i)-(xi). 7 Plaintiff’s allegations challenging defendants’ benefits, leave, and overpayment decisions 8 are brought primarily under 5 U.S.C. § 552a(g)(1)(C). See ECF No. 1 at 3, 14, 17, 21, & 24. 9 That section of the Privacy Act provides a civil remedy “[w]henever an agency . . . fails to 10 maintain any record concerning any individual with such accuracy, relevance, timeliness, and 11 completeness as is necessary to assure fairness in any determination relating to the qualifications, 12 character, rights, or opportunities of, or benefits to the individual that may be made on the basis 13 of such record, and consequently a determination is made which is adverse to the individual.” 5 14 U.S.C. § 552a(g)(1)(C). Subsection (g)(2)(A) permits the court to “order the agency to amend the 15 individual’s record,” and subsection (g)(4) provides for damages in a suit brought under (g)(1)(C) 16 if the court finds that the agency acted intentionally or willfully. 17 But when a matter is committed to the CSRA’s scheme of administrative remedies, the 18 Privacy Act cannot be used as a “backdoor to judicial review.” Houlihan v. Off. of Pers. Mgmt, 19 909 F.2d 383, 385 (9th Cir. 1990) (internal citations omitted). In Houlihan, the Ninth Circuit 20 explained that “in order to consider [the plaintiff’s] Privacy Act claim, we would have to decide 21 not only whether [the agency] violated the Act, but whether [the agency’s] alleged [failure to 22 properly maintain its records] caused it to make ‘a determination . . . which is adverse to [her].’” 23 Id. (quoting § 552a(g)(1)(C)). Entertaining jurisdiction over such a suit would “frustrat[e] 24 Congress’s decision to assign to the [MSPB] the task of policing alleged prohibited personnel 25 practices.” Id. Therefore, if plaintiff’s claims under § 552a(g)(1)(C) challenge a matter “within 26 the scope of the ‘CSRA’s prohibited personnel practices,’” Orsay, 289 F.3d at 1128 (quoting 5 27 28 1 U.S.C. § 2302(b)), this court lacks jurisdiction to hear them.4 2 Plaintiff’s first four claims challenge defendants’ decisions to terminate her healthcare 3 benefits, to charge her for $18,377 in unpaid healthcare premiums, and to seek repayment of two 4 purported salary-overpayment debts. ECF No. 1 at 14, 17, 20, & 23.5 Her fifth claim alleges that 5 defendants were broadly negligent, subjecting her to unfair treatment in various matters relating, 6 inter alia, to her leave status and benefits. See id. at 23-28. And her sixth claim alleges that 7 defendants “subjected [her] to retaliation[] after she raised concerns and complained about her 8 adverse employment issues,” especially insofar as defendant Vega “returned donated leave” even 9 though—according to plaintiff—she was eligible to receive further VLTP donations. Id. at 29. 10 Such “[d]ecision[s] concerning pay, benefits, or awards” are among the “personnel actions” 11 governed by the CSRA. 5 U.S.C. § 2302(a)(2)(A)(ix); see Russell, 191 F.3d at 1017-21 (holding 12 that the CSRA precludes APA review of a federal employee’s FMLA claim for denial of 13 “retroactive leave for her absences . . . [and] placement upon a reduced work schedule or 14 intermittent leave”); Baker v. Napolitano, No. CA 09-0036-CG-C, 2009 WL 1658953, at *11 15 (S.D. Ala. June 11, 2009) (holding that the MSPB had exclusive jurisdiction over a former federal 16 employee’s challenge to “[the Office of Personnel Management’s (‘OPM’)] calculations 17 regarding the overpayment the [plaintiff] received”). 18 Plaintiff challenges these actions as “prohibited personnel practices” as defined in 5 19
20 4 The Privacy Act does not contain a vehicle for alleging common-law torts such as plaintiff appears to allege in claims five and six. See ECF No. 1 at 23 & 28. However, the CSRA 21 bars claims brought under the Federal Tort Claims Act (“FTCA”) and under most other vehicles for claims against the United States. See Mangano, 529 F.3d at 1248 (holding that a federal 22 employee’s FTCA claim arising out of his termination was “subject to CSRA preemption”); 23 Karamanos v. Egger, 882 F.2d 447, 451 (9th Cir. 1989) (holding mandamus review for alleged CSRA violations barred); Fausto, 484 U.S. 439 (holding that CSRA preempts Tucker Act claims 24 for violations of pay-administration statutes in Chapter 55 of Title 5); Russell v. U.S. Dep’t of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999) (holding that the CSRA preempts a federal 25 employee’s challenge under Title II of the FMLA to her denial of paid leave). 5 Although her third claim could be read as challenging only the “fail[ure] to provide [her] 26 with accurate and reliable information pertaining to an alleged salary overpayment in the amount 27 of $5,672,” ECF No. 1 at 20, she later demands the full cancellation of the debt. Therefore, this claim is included here to the extent that it challenges the assessment and collection of the debt; 28 her record-request claim is addressed below. 1 U.S.C. § 2302(b). In her first claim, she alleges that defendants violated § 2302(b)(9)(A) and 2 § 2301(b)(12)(A), the subsections respectively barring actions taken in retaliation for “the 3 exercise of any appeal, complaint or grievance” and actions taken for any reason that violate any 4 of the “merit system principles” listed in § 2301. See ECF No. 1 at 14. Although she does not 5 cite § 2302(b)(9) under her sixth claim, for retaliation, see id. at 28, retaliation is an enumerated 6 prohibited personnel practice. And in all claims except her third, she lists “Prohibited Personnel 7 Practices” as among the “Law(s) Violated.” See ECF No. 1 at 14, 17, 22, & 28. With respect to 8 her fifth claim, which appears to be a negligence claim—although negligence is not listed as a 9 prohibited personnel practice, “the CSRA preempts [tort] claims arising directly out of a federal 10 employment relationship even where the plaintiff has no remedy under the CSRA.” Hamann v. 11 U.S. Dep’t of Interior, No. 21-CV-02383-DDD-NRN, 2022 WL 1605297, at *3 (D. Colo. May 12 20, 2022) (dismissing a negligence claim under the FTCA for “failing to compensate as 13 required”) (citing Mangano, 529 F.3d at 1246). Accordingly, since these claims challenge actions 14 within the scope of the CSRA’s prohibited personnel practices, they should be dismissed for lack 15 of jurisdiction. 16 B. Access to Records 17 Plaintiff alleges that defendants violated her rights under the Privacy Act and FOIA by 18 failing to provide records in response to her October 2018 letter requesting an explanation of its 19 benefits and overpayment determinations.6 See ECF No. 1 at 10, 16, & 31; ECF No. 1-3 at 65-66; 20 ECF No. 29 at 11. Defendant Forest Service argues that plaintiff never filed a proper request in 21 compliance with the agency’s FOIA or Privacy Act regulations and that her claims should 22 therefore be denied for failure to exhaust administrative remedies. ECF No. 28-1 at 5-7. 23 Although plaintiff’s October 2018 letter did not identify itself as a request under either statute, 24 ECF No. 1-3 at 65, plaintiff takes the position that she exhausted her remedies under both 25
6 These claims are not barred by the CSRA. See Rosen v. Walters, 719 F.2d at 1425 (“An 26 individual may still seek the aid of the court to obtain access to his [agency] records, 5 U.S.C. 27 § 552a(d)(1) and (g)(1)(A) . . .[;] all our decision prohibits is an action for damages under § 552a(g)(1)(C) and (g)(4) when review of [agency] decisions on granting or denying []benefits is 28 required.”). 1 statutes, ECF No. 29 at 1. In light of the considerable overlap between the two statutes, I will 2 address her claims together. 3 “The Privacy Act governs the disclosure of, access to, and amendment of records on 4 individuals that are maintained by federal agencies.” Lane v. Dep’t of Interior, 523 F.3d 1128, 5 1138 (9th Cir. 2008). “An individual may ‘gain access to his [or her] record’ upon request,” id. 6 (quoting 5 U.S.C. § 552a(d)(1)), “and a cause of action arises if an agency refuses to comply with 7 a request,” id. at 1139 (citing § 552a(g)(1)(B)). Similarly, FOIA provides for a civil action, see 5 8 U.S.C. § 552(a)(4)(B), when “an agency has (1) improperly; (2) withheld; (3) agency records,” 9 Luis v. U.S. Dep’t of the Interior, No. 1:15-CV-01412-LJO-EPG, 2016 WL 80631, at *2 (E.D. 10 Cal. Jan. 7, 2016) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 11 136, 150 (1980)) (internal marks omitted). In cases where an individual requests their own 12 personnel records, the two statutes provide substantially similar remedies. See Polk v. Fed. 13 Bureau of Investigation, No. 14-cv-4667-PJH, 2016 WL 80564, at *1 (N.D. Cal. Jan. 7, 2016) 14 (explaining that “there is considerable interplay between the two statutes vis-à-vis regulations 15 concerning individuals and public access to such information”). However, requests made by an 16 individual for access to their own records are typically brought under the Privacy Act. See, e.g., 5 17 C.F.R. § 294.103 (“OPM will use its Privacy Act regulations . . . when individuals ask for records 18 about themselves that may be filed in OPM systems of records.”). 19 Both acts provide for the exhaustion of administrative remedies before filing suit. See In 20 re Steele, 799 F.2d 461, 465-66 (9th Cir. 1986) (holding that suits under FOIA require exhaustion 21 of administrative remedies); Sterrett v. Dep’t of Navy, No. 09-CV-2083-IEG (POR), 2010 WL 22 330086, at *4 (S.D. Cal. Jan. 20, 2010) (“[T]here is no doubt the exhaustion of administrative 23 remedies is a prerequisite before a federal court can review a Privacy Act claim seeking access to 24 documents.”). Exhaustion is a jurisdictional requirement for Privacy Act suits, see Barouch v. 25 U.S. Dep’t of Just., 962 F. Supp. 2d 30, 67 (D.D.C. 2013) (“[F]ailure to exhaust administrative 26 remedies under the Privacy Act is a jurisdictional deficiency because exhaustion is required by 27 statute.”); Tangirala v. Potter, No. CIV-S-06-0384 FCD GGH PS, 2008 WL 2633239, at *19 28 (E.D. Cal. June 25, 2008) (recommending dismissal of Privacy Act suit for failure to exhaust 1 under Rule 12(b)(1), for lack of jurisdiction), whereas “[e]xhaustion under FOIA is a prudential 2 rather than jurisdictional consideration,” Aguirre v. U.S. Nuclear Regul. Comm’n, 11 F.4th 719, 3 725 (9th Cir. 2021) (citing Yagman v. Pompeo, 868 F.3d 1075, 1083-84 (9th Cir. 2017)). 4 Relatedly, unlike under the Privacy Act, the FOIA exhaustion requirement can be waived 5 pursuant to a “constructive-exhaustion provision, under which requestors are deemed to have 6 exhausted their remedies when an agency misses a statutory deadline.” Id. (citing 5 U.S.C. 7 § 552(a)(6)(C)(i)); cf. Barouch, 962 F. Supp. 2d at 67 (“[B]ecause exhaustion under the Privacy 8 Act is jurisdictional, the Court cannot find that plaintiff constructively exhausted his 9 administrative remedies.”). 10 As an initial matter, the USDA’s Privacy Act regulations provide that “[a]ny individual 11 whose request . . . is denied may appeal that denial to the head of the agency which maintains the 12 system of records to which the request relates,” 7 C.F.R. § 1.112(b), and “bring[ing] a civil action 13 in federal district court to seek review of the denial” is authorized “[i]n the event that an 14 appeal . . . is denied,” id. § 1.112(c) (emphasis added). Plaintiff does not claim that she appealed 15 any denial of her Privacy-Act claim, instead arguing only that the agency’s failure to respond 16 constitutes constructive exhaustion of her remedies under FOIA. See ECF No. 29 at 10. Since 17 there is no constructive-exhaustion provision under the Privacy Act, her claims must be dismissed 18 for lack of jurisdiction. See Barouch, 962 F. Supp. 2d at 67. 19 Defendant argues that plaintiff’s FOIA claim should similarly be dismissed because her 20 October 2018 letter did not include a proper FOIA request, and therefore FOIA’s constructive- 21 exhaustion provision does not apply. See ECF No. 32 at 2. Plaintiff argues that her request 22 constituted a proper FOIA request despite her failure to identify it as such because “a person need 23 not title a request for government records a FOIA request.” ECF No. 29 at 11 (quoting Newman 24 v. Legal Services Corp., 628 F. Supp. 535, 543, 121 L.R.R.M. (BNA) 2962 (D.D.C. 1986)) 25 (internal quotation marks omitted). Defendant responds that her characterization of the letter is 26 “nothing more than a post-hoc attempt to paint prior correspondence as a FOIA request,” noting 27 that the letter “does not request government records, but repeatedly states that she seeks 28 ‘reinstatement of [her] health benefits.’” Id. (quoting ECF No. 1-3 at 62, 67). 1 To demonstrate exhaustion of remedies under FOIA, the plaintiff must show that she 2 “request[ed] specific information in accordance with published administrative procedures.” In re 3 Steele, 799 F.2d at 466 (emphasis added) (citing 5 U.S.C. § 552(a)(1), (2), & (3)). “Where no 4 attempt to comply fully with agency procedures has been made,” the complaint should be 5 dismissed for failure to exhaust. Id.; see also Stein v. Cent. Intel. Agency, 454 F. Supp. 3d 1, 22 6 (D.D.C. 2020) (“‘An agency’s obligation under the FOIA does not arise . . . until a proper request 7 is received.’”) (quoting Thomas v. Fed. Commc’ns Comm’n, 534 F. Supp. 2d 144, 145 (D.D.C. 8 2008)). The USDA’s FOIA regulations permit an individual to submit FOIA requests (1) “in 9 writing . . . to the designated component listed on the USDA’s website that maintains the records 10 requested,” (2) “electronically via USDA’s online web portal,” (3) by email to “component FOIA 11 offices as listed on the USDA public FOIA website,” or (4) by “send[ing] a request to the 12 Departmental FOIA Officer.” 7 C.F.R. §§ 1.3(a)(1)-(3). The regulations further state that “[t]o 13 facilitate the processing of a request, a requester should place the phrase “FOIA REQUEST” in 14 capital letters on the front of their envelope, the cover sheet of their facsimile transmittal, or the 15 subject line of their email.” Id. § 1.3(a)(4). 16 Her request for information lacks indicators that it is a FOIA request. Her request appears 17 in a single, two-sentence paragraph on the fourth page of a six-page letter, the remainder of which 18 is devoted to explaining her dispute, outlining a variety of objections to her treatment, and 19 demanding explanations. She makes no allegation that she identified her request as a “FOIA 20 REQUEST” in any way; indeed, she does not appear to have identified her request as a FOIA or 21 Privacy Act-based request at any point prior to filing suit. And nothing before the court suggests 22 that any of the individuals to whom she sent her letter was a proper recipient of a FOIA request 23 under 7 C.F.R. §§ 1.3(a)(1)-(3). 24 Since it is apparent that she made no “attempt to comply fully with agency procedures,” it 25 would be improper to construe her letter as a FOIA request that triggered the agency’s obligations 26 or FOIA’s constructive-exhaustion provision. See In re Steele, 799 F.2d at 466 (explaining that 27 the district court committed reversable error when it “construed [an] informal discovery letter and 28 subsequent motion for discovery as a FOIA request”); see also Stockton E. Water Dist. v. United 1 States, No. 2:08-CV-0563-GEB-GGH, 2008 WL 5397499 at *2 (E.D. Cal. Dec. 19, 2008) 2 (granting summary judgment to defendants in part because the purported FOIA request was made 3 in a letter that referenced FOIA only once “in a context which did not clearly show the letter was 4 meant to be a request under the FOIA”); Stein, 454 F. Supp. 3d at 22-23 (holding that the 5 defendant agency’s obligations under FOIA were not triggered by emails that “did not comply 6 with the agency’s regulations for submitting FOIA requests”). 7 C. Declaratory Judgment Act Claims 8 Plaintiff also invokes the Declaratory Judgment Act (“the Act”), 28 U.S.C. § 2201. See 9 ECF No. 1 at 4. The Act provides that “in a case of actual controversy within its jurisdiction . . . 10 any court of the United States, upon the filing of an appropriate pleading, may declare the rights 11 and other legal relations of any interested party seeking such declaration, whether or not further 12 relief is or could be sought.” 28 U.S.C. § 2201(a). The Act “is not a grant of jurisdiction to the 13 federal courts. It merely makes available an additional remedy in cases where a court already has 14 subject matter jurisdiction.” Kidd v. United States, 59 F.3d 175 (9th Cir. 1995) (citing Skelly Oil 15 Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950). Hence, in evaluating claims under 16 the Act, “the district court must first inquire whether there is an actual case or controversy within 17 its jurisdiction.” Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir. 2005). “[I]f 18 there is a case or controversy within its jurisdiction, the court must decide whether to exercise . . . 19 [its] discretionary [authority] . . . to entertain declaratory relief.” Am. States Ins. Co. v. Kearns, 20 15 F.3d 142 (9th Cir. 1994). 21 Because I find that the CSRA deprives this court of jurisdiction over all but plaintiff’s 22 records-access claims, the Act’s potential relevance is limited. And although I recommend 23 dismissing plaintiff’s FOIA claims for access to records for failure to state a claim rather than for 24 lack of jurisdiction, the jurisprudential considerations underlying FOIA’s exhaustion requirement 25 apply with equal or greater force to application of the Act. See Chamberlain v. Allstate Ins. Co., 26 931 F.2d 1361, 1367 (9th Cir. 1991) (explaining that the court “must balance concerns of judicial 27 administration, comity, and fairness to the litigants”). Accordingly, her claims under the 28 Declaratory Judgment Act should be dismissed. 1 D. Other Defendants 2 Defendant Forest Service brought the instant motion on its own behalf; the remaining 3 defendants have yet to appear. But the court must bear in mind that plaintiff is proceeding under 4 the in forma pauperis statute, 28 U.S.C. § 1915, which provides that the court “shall dismiss a 5 case if at any time if the court determines” that the action “(i) is frivolous or malicious; (ii) fails to 6 state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant 7 who is immune from such relief.” 28 U.S.C. § 1915(e)(2); see Lucero v. Pennella, No. 1:18-CV- 8 01448-LJO-SAB, 2018 WL 5793429 (E.D. Cal. Nov. 2, 2018). Because FOIA and the Privacy 9 Act only authorize suits against an “agency,” and the court lacks jurisdiction over plaintiff’s 10 claims brought under other statutes, plaintiff’s allegations against the individual defendants 11 should be dismissed under the in forma pauperis statute.7 See 5 U.S.C. §§ 552(f), 552a(g)(1); 12 Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 (9th Cir. 1987) (“The agency is the 13 only proper party to such a suit; the civil remedy provisions do not apply to individual 14 defendants.”); Sherwood Van Lines, Inc. v. U.S. Dep’t. of Navy, 732 F. Supp. 240, 241 (D.D.C. 15 1990) (“FOIA authorizes suit against federal agencies and does not create a cause of action 16 against individual employees of the federal agency.”). 17 E. Conclusion 18 I will recommend that defendant Forest Service’s motion to dismiss be granted based on a 19 combination of lack of jurisdiction and failure to state a claim, and that plaintiff’s remaining 20 claims against individual defendants who have yet to appear be dismissed under the in forma 21 pauperis statute. Since an amended complaint could conceivably correct the shortcomings of the 22 current one, I will recommend that the court grant plaintiff leave to amend. See Lopez v. Smith, 23 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (holding that district courts must afford pro se 24 litigants an opportunity to amend if it appears possible that they can correct the deficiencies in 25 their complaints). 26 Accordingly, it is hereby RECOMMENDED that defendant’s motion to dismiss, ECF 27 7 Although the parties appear to agree that the individual defendants are not proper 28 defendants in this action, see ECF Nos. 14 & 30, those defendants have not yet been dismissed. 1 | No. 28, be granted and the complaint, ECF No. 1, be dismissed with leave to amend. 2 I submit these findings and recommendations to the district judge under 28 U.S.C. 3 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 4 | Eastern District of California. The parties may, within 14 days of the service of the findings and 5 | recommendations, file written objections to the findings and recommendations with the court. 6 | Such objections should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” The district judge will review the findings and recommendations under 28 8 | U.S.C. § 636(b)1)(C). 9 10 IT IS SO ORDERED. 11 ( — Dated: _ September 9, 2022 Q_-——— 12 at D. PETERSON 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15