Bettwieser v. Lucas , 364 F. App'x 392 ( 2010 )

FILED
FEB 11 2010
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN BETTWIESER, No. 07-35964
Plaintiff - Appellant, D.C. No. CV-06-00142-WFN
v.
MEMORANDUM *
MARTIN LUCAS; LISA
BUTTERWORTH; JIM SYKES; UNITED
STATES POSTAL SERVICE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
William Fremming Nielson, District Judge, Presiding
Submitted February 1, 2010 **
Seattle, Washington
Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.
Martin Bettwieser, an employee of the United States Postal Service
(“USPS”), appeals from the district court’s order dismissing his complaint with
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
prejudice, for failure to exhaust administrative remedies. The order also denied
Bettwieser’s motion for default judgment and overruled his objection to the United
States Attorneys’ Office’s representation of the individually named defendants. In
his opening brief, Bettwieser raised numerous issues for appeal. We dismiss this
appeal for lack of subject matter jurisdiction because Bettwieser failed to exhaust
administrative remedies.
Prior to filing his complaint in the district court, Bettwieser sent a request for
production of documents pursuant to the Freedom of Information Act and the
Privacy Act to Lisa Butterworth, the Manager of Customer Service at the USPS
branch where Bettwieser works. Jim Sykes, the Manager of Labor Relations for
the Spokane District, sent a letter to Bettwieser that instructed him to direct any
appeal of the response to the request for documents to the Chief Counsel of
Customer Protection and Privacy of the USPS in Washington, D.C. According to
the November 6, 2006 declaration of Anthony Alvaro, Chief Counsel of the USPS,
no appeal was ever filed.
“Exhaustion of a parties’ [sic] administrative remedies is required under the
FOIA before that party can seek judicial review.” In re Steele, 799 F.2d 461, 465
(9th Cir. 1993).
In Laing v. Ashcroft, 370 F.3d 994, 1001 (9th Cir. 2004), the Ninth Circuit
2
held that “exhaustion of administrative remedies may not be required when (1)
available remedies provide no genuine opportunity for adequate relief; (2)
irreparable injury may occur without immediate judicial relief; (3) administrative
appeal would be futile; and (4) in certain instances a plaintiff has raised a
substantial constitutional question.” Id. at 1000-01; quoting Beharry v. Ashcroft,
329 F.3d 51, 62 (2d Cir. 2003) (internal citations and quotation marks omitted).
Bettwieser has not demonstrated that he did not receive a genuine
opportunity for adequate relief, that he would suffer irreparable injury without
immediate judicial relief, that an administrative appeal would be futile, nor has he
raised a substantial constitutional question.
The district court properly dismissed the action for lack of subject matter
jurisdiction under Rule 12(b)(1).1 Since there is no jurisdiction for this Court
either until administrative remedies are exhausted, we will not reach any issues
Bettwieser has raised in his appeal to this Court.
DISMISSED.
1
While the district court’s order dismissed the complaint before it with
prejudice for failure to exhaust administrative remedies, the district court’s order
will not preclude Bettwieser from pursuing an attempt to seek an administrative
remedy, if it is timely, or seeking timely judicial review of an adverse final
decision. See City of Oakland v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009)
(“[F]ailure to exhaust administrative remedies is properly treated as a curable
defect and should generally result in a dismissal without prejudice”).
3