Tereshchuk v. Bureau of Prisons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
MYRON TERESHCHUK, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1911 (RWR)
)
BUREAU OF PRISONS, )
)
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Myron Tereshchuk, a prisoner, brings a FOIA
claim against the Bureau of Prisons (“BOP”), 5 U.S.C. § 552,
alleging that he constructively exhausted his administrative
remedies after BOP improperly withheld records sought in three
separate requests. The Bureau of Prisons moved to dismiss the
supplemental complaint or, alternatively, for summary judgment,
arguing that Tereshchuk’s failure to exhaust his administrative
remedies bars judicial review. Tereshchuk later moved under
Federal Rule of Civil Procedure 15(b)1 for leave to file a
1
Rule 15(b)(2) provides that
[w]hen an issue not raised by the pleadings is tried by
the parties’ express or implied consent, it must be
treated in all respects as if raised in the pleadings.
A party may move -- at any time, even after judgment --
to amend the pleadings to conform them to the evidence
and to raise an unpleaded issue.
Fed. R. Civ. P. 15(b)(2) (emphasis added). By its title and
terms, Rule 15(b) permits amendments to pleadings during and
after trial. Fed. R. Civ. P. 15(b). See Universe Antiques, Inc.
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complaint to conform to the evidence, and under Rule 15(d) for
leave to file a second supplemental complaint, reflecting that he
actually exhausted two FOIA requests made on January 28, 2010.
Because Tereshchuk has not paid the requisite fees or applied for
and appealed the denial of a fee waiver as to these two requests,
BOP’s motion to dismiss will be granted, and Tereshchuk’s motion
to supplement denied, as to them. However, because Tereshchuk
constructively exhausted his August 10, 2009 FOIA request after
BOP failed timely to respond to it, see 5 U.S.C.
§ 552(a)(6)(A)(i), that portion of Tereshchuk’s FOIA claim
survives dismissal.
v. Vareika, No. 10 Civ. 3629, 2011 WL 5117057, at *7 (S.D.N.Y.
Oct. 21, 2011) (“Because trial in this matter has not yet
commenced, . . . any discussion of [Rule 15(b)] would be
premature[.]”); Dank v. Shinseki, 374 F. App’x 396, 401 (4th Cir.
2010) (describing Rule 15(b)(2) as a “ground for granting a
mid-trial amendment”); Gold v. Local 7 United Food and Commercial
Workers Union, 159 F.3d 1307, 1309 n.3 (10th Cir. 1998) (“Rule
15(b) seems a totally inappropriate vehicle for a motion to amend
prior to trial.”), abrogated on other grounds by Styskal v. Weld
Cnty. Bd. of Comm’rs, 365 F.3d 855 (10th Cir. 2004). Some courts
have stated that a party movant may seek leave under Rule 15(b)
“at any time, even after judgment.” C & E Services, Inc. v.
Ashland Inc., 601 F. Supp. 2d 262, 274 (D.D.C. 2009). However,
“the rule also indicates that it pertains ‘when issues not raised
by the pleadings are tried’ and ‘if evidence is objected to at
the trial.’” E. Bay Recycling, Inc. v. Cahill, No. 00 Civ. 6147,
2007 WL 2728421, at *4 (S.D.N.Y. Sept. 14, 2007) (quoting Fed. R.
Civ. P. 15(b)) (emphasis removed). “Accordingly, such a motion
can only be made ‘at any time’ during or subsequent to a trial,
but not before.” Id. Tereshchuk’s motion as to Rule 15(b)(2)
therefore is premature since no trial of this matter has begun.
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BACKGROUND
Tereshchuk’s existing supplemental complaint2 alleges that
he sent the BOP three requests for documents under FOIA, that BOP
failed timely to respond to them, and that he therefore
constructively exhausted his FOIA requests. (Supp’l Compl. ¶¶ 6-
7, 9.) BOP, however, responded within the required twenty
business days to his last two requests, informing Tereshchuk that
he was required to pay duplicating fees before the requests were
processed. (Def.’s Ren. Mot. (“Def.’s Ren. Mot.”) to Dis. or for
Summ. J., Stmt. of Mat. Facts (“Def.’s Stmt.”) ¶¶ 5-7.)
Tereshchuk claims that he was entitled to inspect the requested
records –- before paying duplication fees –- in order to
determine which documents BOP should copy. (Supp’l Compl. ¶¶ 17,
19.) He moves to file a second supplemental complaint that
alleges actual exhaustion of the last two of his FOIA requests in
light of a May 17, 2010 letter he received from the Office of
Information Policy (“OIP”) at the Department of Justice (“DOJ”).
(See Pl.’s Mem. in Support of Mot. for Leave to File a Compl. to
Conform to the Evidence (“Pl.’s Mem.”) at 3; Pl.’s Mot. for Leave
to File a Compl. to Conform (“Pl.’s Mot.”), Ex. 1, Compl. To
Conform to the Evid. or, Alternatively, a Supp’l Compl. (“2d
Supp’l Compl.”) ¶¶ 12-15; 2d Supp’l Compl., Ex. H (“OIP Letter”)
2
Tereshchuk filed a complaint and was later granted leave
to file a supplemental complaint.
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at 1-2.) The letter stated that Tereshchuk had failed to prepay
the duplication fee his FOIA request incurred. (OIP Letter at 1;
see also 2d Supp’l Compl. ¶ 11.) It urged him to seek an
“alternate right of access to the materials . . . if [he]
remain[ed] unwilling to pay[,]” since neither BOP regulations nor
the FOIA provide for a right of inspection. (OIP Letter at 1.)
Tereshchuk newly attaches to his proposed pleading letters
BOP sent him requesting advance payment of duplication fees3 and
denying expedited processing of his FOIA request (2d Supp’l
Compl., Exs. E-F; id. ¶¶ 11-12), his own administrative appeal
challenging “the wrongful withholding of the requested records
and demanding access to inspect [them]” (id., Ex. G) and the OIP
letter discussed above. He argues that this additional
information bears directly upon the central question of whether
he exhausted his administrative remedies. (Pl.’s Mem. at 4; see
also 2d Supp’l Compl. ¶ 15 (“By having appealed the adverse
initial agency determination and having received a final agency
determination, Plaintiff has satisfied all of the requirements to
demonstrate an actual exhaustion of administrative
remedies[.]”).)
3
See 2d Supp’l Compl. ¶¶ 8, 11 (describing fees BOP assessed
Tereshchuk for his FOIA requests).
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DISCUSSION
I. AUGUST 10, 2009 REQUEST
BOP argues that Tereshchuk never paid the fees associated
with his August 10, 2009 FOIA request, and never “reformulat[ed]
[it] to meet his needs at a lower cost[.]” (Def.’s Mem. of P. &
A. in Supp. of Def.’s Ren. Mot. (“Def.’s Mem.”) at 7.) However,
Tereshchuk constructively exhausted the request since the BOP
failed timely to respond as required within twenty business days.
See 5 U.S.C. § 552(a)(6)(A)(i); Jarvik v. C.I.A., 741 F. Supp. 2d
106, 110 n.2 (D.D.C. 2010) (“If an agency fails to answer a FOIA
request within twenty days, FOIA deems the requester to have
constructively exhausted his administrative remedies and permits
immediate judicial review.”) (citing 5 U.S.C. § 552(a)(6)(c)).
BOP received Tereshchuk’s request on August 17, 2009 (Supp’l
Compl., Ex. 1) and mailed him an untimely response on October 22,
2009. (Def.’s Stmt. ¶ 4.) Tereshchuk filed this civil action on
October 8, 2009, after the twenty-day deadline but before
receiving BOP’s letter. See Thomas v. Dep’t of Health & Human
Services, 587 F. Supp. 2d 114, 117-118 (D.D.C. 2008) (“The FDA’s
letter demanding pre-payment of the search fees came too late;
[plaintiff] had already submitted his complaint for filing. And,
in any case, the [ ] letter . . . still did not satisfy the
requirements of 5 U.S.C. § 552(a)(6)(A)(i) and (ii)[.]”). Since
Tereshchuk constructively exhausted his FOIA claim as to his
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August 10, 2009 FOIA request, and BOP’s belated fee letter does
not restart the exhaustion clock, the motion to dismiss will be
denied as to the August 10, 2009 request.4
II. JANUARY 28, 2010 REQUESTS
The FOIA requests Tereshchuk filed on January 28, 2010
requested the same records in hard copy and in a digital format.
(Def.’s Stmt. ¶ 5; 2d Supp’l Compl. ¶ 7.) BOP argues that
Tereshchuk must exhaust his administrative remedies before
seeking judicial review of these requests, and that he has failed
to do so either by paying the required fees, requesting a fee
waiver, or appealing a denial of a fee waiver request. (Def.’s
Mem. at 6-7.)
“A party requesting agency records under the FOIA must
comply with the procedures set forth in the regulations
promulgated by th[e] agency[]” from which the documents are
requested. Calhoun v. U.S. DOJ, 693 F. Supp. 2d 89, 91 (D.D.C.
2010). The DOJ has promulgated regulations governing requests
for records from its various components, of which the BOP is one.
For example, the regulations provide that “[d]uplication fees
will be charged to all requesters,” 28 C.F.R. § 16.11(c)(2), and
that when the estimated duplication fee exceeds $250, “[the
component] may require the requester to make an advance payment
4
Tereshchuk has cross-moved for summary judgment. Rather
than grant his motion as to the August 10, 2009 request, the BOP
will be directed to file within 30 days an answer to this claim.
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of an amount up to the amount of the entire anticipated fee
before beginning to process the request[.]” Id. § 16.11(i)(2).
Further, “[i]n cases in which a component requires advance
payment,” DOJ’s regulations state that “the request shall not be
considered received and further work will not be done on it until
the required payment is received.” Id. § 16.11(i)(4).
Where, as here, an agency argues that the requester has
failed to exhaust, a court analyzes the matter under Rule
12(b)(6) for failure to state a claim.5 In considering a Rule
12(b)(6) motion to dismiss for failure to state a claim, a court
“assume[s] all the allegations in the complaint are true (even if
doubtful in fact)” and “must give the plaintiff the benefit of
all reasonable inferences derived from the facts alleged[.]”
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d
8, 17 (D.C. Cir. 2008) (internal quotation marks and citation
omitted); accord Simba v. Fenty, 754 F. Supp. 2d 19, 22 (D.D.C.
2010). To prevail, the plaintiff’s amendments must “contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
5
Failure to exhaust a FOIA claim is not “a jurisdictional
bar to judicial review.” Jones v. U.S. DOJ, 576 F. Supp. 2d 64,
66 (D.D.C. 2008) (citing Hidalgo v. FBI, 344 F.3d 1256, 1258
(D.C. Cir. 2003)). Still, exhaustion is a “condition precedent”
to filing a FOIA action. Flaherty v. President of the United
States, 796 F. Supp. 2d 201, 207 (D.D.C. 2011). Where, as here,
an agency argues that the requester has failed to exhaust, a
court analyzes the matter under Rule 12(b)(6) for failure to
state a claim. Id. (citing Jones, 576 F. Supp. 2d at 66).
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Ct. 1937, 1949 (2009) (internal quotation marks and citation
omitted). While a pro se complaint is held “to less stringent
standards than [are] formal pleadings drafted by lawyers[,]” Tate
v. D.C., 627 F.3d 904, 912 (D.C. Cir. 2010) (internal quotation
marks and citation omitted), it still “must plead factual matter
that permits the court to infer more than the mere possibility of
misconduct.” Jones v. Horne, 634 F.3d 588, 596 (D.C. Cir. 2011)
(internal quotation marks and citation omitted).
“Where a FOIA request is not made in accordance with the
[agency’s] published regulations, the FOIA claim is subject to
dismissal for failure to exhaust administrative remedies, as
‘[t]he failure to comply with an agency’s FOIA regulations [for
filing a proper FOIA request] is the equivalent of a failure to
exhaust.’” Calhoun, 693 F. Supp. 2d at 91 (citation omitted)
(alteration in original). Here, exhaustion would entail
“appealing BOP’s adverse determinations to OIP and paying any
assessed fees or appealing to OIP the denial of a fee waiver.”
Antonelli v. BOP, 591 F. Supp. 2d 15, 26 (D.D.C. 2008)(citing
Oglesby v. Dep’t of the Army, 920 F.2d 57, 65–67 (D.C. Cir.
1990)) (additional citations omitted). Since Tereshchuk’s
proposed pleading neither alleges nor proffers that he has paid
the requisite fees or sought a fee waiver, he has failed to
exhaust his administrative remedies. See, e.g., Banks v. US DOJ,
605 F. Supp. 2d 131, 139 (D.D.C. 2009) (“[P]laintiff failed to
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exhaust his administrative remedies with respect to his FOIA and
Privacy Act requests to the FBI because he failed to pay
duplication fees.”); Sliney v. BOP, Civil Action No. 04-1812
(RBW), 2005 WL 839540, at *4 (D.D.C. Apr. 11, 2005) (“Failure to
pay the requested fees or to appeal the denial from a refusal to
waive fees constitutes a failure to exhaust administrative
remedies.”) Thus, the amendment is futile because it fails to
state a claim upon which relief can be granted.6
6
Tereshchuk moves for leave to file a supplemental complaint
under Rule 15(d), which, “on just terms,” “permit[s] a party to
serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading
to be supplemented.” Fed. R. Civ. P. 15(d). The court has
“broad discretion in determining whether to allow supplemental
pleadings[.]” Jones v. Bernanke, 685 F. Supp. 2d 31, 35 (D.D.C.
2010). Courts resolve Rule 15(d) motions under the same standard
as they resolve motions to amend under Rule 15(a). Wildearth
Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008).
Leave should be given freely, but not automatically, “when
justice so requires.” Id.; see also LaPrade v. Abramson, Civ.
Action No. 97-10 (RWR), 2006 WL 3469532, at *3 (D.D.C. Nov. 29,
2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The
defendant “bear[s] the burden of demonstrating why leave should
not be granted.” LaPrade, 2006 WL 3469532, at *3 (citation
omitted).
Futility is one ground for denying leave to file an amended
complaint. Foman, 371 U.S. at 182. Futile amendments include
those that “could not withstand a motion to dismiss.” Pietsch v.
McKissack & McKissack, 677 F. Supp. 2d 325, 328 (D.D.C. 2010)
(citations omitted); accord Cornish v. Dudas, 715 F. Supp. 2d 56,
68 (D.D.C. 2010). Since Tereshchuk has failed to exhaust his
January 28, 2010 FOIA requests for the reasons stated above, his
proposed amendments concerning those requests would not survive
dismissal. The motion for leave to file a supplemental complaint
therefore will be denied.
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CONCLUSION AND ORDER
Tereshchuk’s request for leave to file a complaint to
conform to the evidence is premature, and his existing and
proposed supplemental pleadings fail to state a facially
plausible claim regarding his January 28, 2010 requests since he
has not exhausted his administrative remedies as to them.
Accordingly, it is hereby
ORDERED that the BOP’s renewed motion [25] to dismiss be,
and hereby is, GRANTED IN PART and DENIED IN PART. The motion is
granted as to Tereshchuk’s January 28, 2010 requests and denied
as to his August 10, 2009 request. It is further
ORDERED that Tereshchuk’s motion [35] for leave to file a
complaint to conform to the evidence or a supplemental complaint
be, and hereby is, DENIED. It is further
ORDERED that Tereshchuk’s cross-motion [31] for summary
judgment be, and hereby is, DENIED. It is further
ORDERED that BOP file within thirty days an answer to
Tereshchuk’s FOIA claim as to his August 10, 2009 FOIA request.
SIGNED this 31st day of March, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge