Eames v. United States

• Decision Date: 26 September 2014
• Docket Number: Case No. 1:13-cv-00040-DBP
• Parties: BRADY EAMES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Utah

BRADY EAMES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No. 1:13-cv-00040-DBP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, NORTHERN DIVISION

September 26, 2014

MEMORANDUM DECISION

Magistrate Judge Dustin B. Pead

I. INTRODUCTION

The parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c). (Docket No. 12.) On February 22, 2013, pro se Plaintiff filed his original complaint. (Dkt. No. 1.) On May 15, 2013, Plaintiff filed his first amended complaint. (Dkt. No. 2.) On July 2, 2013, Plaintiff filed his second amended complaint. (Dkt. No. 13.)

The Court now considers: (1) Defendant's motion to dismiss Plaintiff's second amended complaint or in the alternative motion for summary judgment (Dkt. No. 20); and (2) Plaintiff's four motions to amend his second amended complaint (Dkt. Nos. 28-29; 31-32.) For the reasons set forth below, the Court GRANTS Defendant's motion and DENIES Plaintiff's motions.

II. DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

Plaintiff's second amended complaint raises claims numbered 2 through 100.¹ These claims allege that Defendant, through numerous government agencies, failed to publish information in the Federal Register ("F.R."), Code of Federal Regulations ("C.F.R."), and executive orders, as well as failed to provide information about and access to various government committees/meetings. (See generally Dkt. No. 13.)

On September 10, 2013, Defendant moved to dismiss Plaintiff's second amended complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction and under Fed. R. Civ. P 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. No. 20.) For the reasons set forth in Defendant's motion and further analyzed below, this Court GRANTS Defendant's motion.

A. Lack of Subject-Matter Jurisdiction Under Fed. R. Civ. P. 12(b)(1)

Defendant moves to dismiss the majority of Plaintiff's second amended complaint for lack of subject-matter jurisdiction because Plaintiff failed to: (1) establish standing; (2) exhaust his Freedom of Information Act ("FOIA") administrative remedies; and (3) show some of his claims are not moot. (Dkt. No. 20. at 2, 15 n. 5.)² Although not raised by Defendant, the Court also discusses its subject-matter jurisdiction over Plaintiff's FOIA claims under the Administrative Procedures Act ("APA").

i. Lack of Article III Standing for Claims 2-14, 17-27, 31-33, 38, 40-44, 48, 52-59, 62-66, 69, 72-76, 78, 80-86, and 96-100 Due to Lack of Injury

Claims 2-14, 17-27, 31-33, 38, 40-44, 48, 52-59, 62-66, 69, 72-76, 78, 80-86, and 96-100 allege that Defendant "unlawfully withheld performing its official" procedural duties, duties of guidance, and duties of disclosure to Plaintiff. (See generally Dkt. No. 13.) More specifically, Defendant failed to publish certain information in the U.S.C., F.R., C.F.R., executive orders, a government committee charter, online, and to Congress. Defendant also failed to make the F.R. available for sale. (Id. ¶ 78.) Notably, these claims do not assert that Plaintiff specifically requested any of the information at issue.

Defendant moves to dismiss these claims because Plaintiff failed to establish Article III or prudential standing.³ See Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 874 (10th Cir. 1992) ("Article III of the Constitution limits the judicial power of federal courts to the resolution of cases and controversies. . . . One of the requirements of a case or controversy is that the plaintiff have standing to challenge the action sought to be adjudicated in the lawsuit.") (internal quotation marks and citation omitted).

More specifically, Defendant moves to dismiss the aforementioned claims because they "could be brought by anyone and everyone," and they fail to include "any factual allegation[s] as to how or why" Plaintiff "has suffered a 'distinct and palpable injury to himself.'" (Dkt. No. 20 at 5.) 969 F.2d at 875 (reiterating that, for Article III standing, a plaintiff "must show a distinct and palpable injury to itself," and noting that a "right to have the Government act in accordance with law is not sufficient . . . to confer jurisdiction on a federal court . . . .") (internal quotation marks and citation omitted).

In his amended opposition to Defendant's motion to dismiss, Plaintiff claims standing under the APA, 5 U.S.C. § 702. (Dkt. No. 30 at 3-5.)⁴ 5 U.S.C. § 702 provides that "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

Under the APA, Plaintiff clarifies that Defendant injured his "strong interest in administrative law" by failing to publish information he wished to "study." (Dkt. No. 30 at 1.) However, Plaintiff concedes that if he "has suffered such guidance injury, 'anyone' and 'everyone' has also." (Id. at 4.)

The APA does not provide a substitute for Article III standing. See Match-E-Be-Nash-She-Wish Band of Pottawataomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) ("[A] person suing under the APA must satisfy not only Article III's standing requirements, but an additional test" related to prudential standing) (internal quotation marks omitted). In other words, Plaintiff must still allege a distinct and palpable injury to himself before invoking the APA.

Unfortunately, injury to Plaintiff's interest in administrative law caused by Defendant's unlawful failure to publish information is not distinct or palpable enough to invoke standing under the APA. See Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (denying standing to environmental organization because "a mere interest in a problem . . . is not sufficient by itself torender the organization adversely affected or aggrieved within the meaning of the APA . . . .") (internal quotation marks omitted).⁵

ii. Lack of Prudential Subject-Matter Jurisdiction Over Claims 2-5, 7-9, 18-27, 31-32, 42-48, 51-56, 58, 63-64, 69-70, 72-76, and 81-100 for Failure to Exhaust FOIA Administrative Remedies

Claims 2-5, 7-9, 18-27, 31-32, 42-44, 48, 52-56, 58, 63-64, 69, 72-76, 81-86, and 96-100 allege that Defendant violated FOIA, 5 U.S.C. §§ 552(a)(1) and (a)(2), when it failed to publish certain information in the F.R.,C.F.R., and electronically.⁶

Claims 47, 51, and 70 allege that Defendant violated FOIA, 5 U.S.C. § 552(a)(3), when it failed to provide various records and regulations in response to Plaintiff's FOIA requests.⁷

Claims 45-46 allege that Defendant violated FOIA, 5 U.S.C. § 552(a)(6)(A)(i), by failing to notify Plaintiff of his right to appeal adverse FOIA adjudications to the heads of the agencies that adversely adjudicated his FOIA requests.⁸

Claims 87 through the first claim numbered 95 allege that Defendant violated FOIA, 5 U.S.C. § 552(a)(6)(A)(i)-(ii), by adversely adjudicating Plaintiff's FOIA requests without identifying the individuals adjudicating the requests in the C.F.R. The second claim numbered 95 alleges that Defendant violated FOIA, 5 U.S.C. § 552(h)(3), by failing to identify the director who adversely adjudicated Plaintiff's FOIA disputes in the C.F.R.⁹

In his opposition to Defendant's motion to dismiss, Plaintiff states that he lacks a private right of action under FOIA, 5 U.S.C. §§ 552(a)(1)-(2), and (a)(6)(A)(i). (Dkt. No. 30 at 6-7, 10, 13-14, 17.) However, Plaintiff does noes not state that he lacks a private right of action under FOIA, 5 U.S.C. §§ 552(a)(3), (a)(6)(A)(ii), or (h)(3). To provide a complete subject-matter jurisdiction analysis, the Court therefore addresses its subject-matter jurisdiction under FOIA.

FOIA provides district courts with "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). However, the Tenth Circuit has held that a party's "failure to exhaust administrative remedies under FOIA . . . is a prudential consideration" that courts "take[] into account in determining whether to exercise subject matter jurisdiction." Hull v. I.R.S., 656 F.3d 1174, 1181-82 (10th Cir. 2011) (citations omitted). See also Trenerry v. IRS, 78 F.3d 598, at *1 (10th Cir. Mar. 1, 1996) (unpublished) ("[T]he district court lacked subject matter jurisdiction over this action where plaintiff has failed to exhaust her administrative remedies" regarding her FOIA requests).

Defendant moves to dismiss all of Plaintiff's FOIA claims because he failed "to plead that he exhausted his administrative remedies." (Dkt. No. 20 at 15 n.5.) This Court agrees withDefendant's reasoning and concludes that it lacks prudential subject-matter jurisdiction over Plaintiff's FOIA claims.

As to claims 2-5, 7-9, 18-27, 31-32, 42-44, 48, 52-56, 58, 63-64, 69, 72-76, 81-86, and 96100, Plaintiff failed to plead that he exhausted his FOIA administrative remedies because nothing in his pleadings indicates that he submitted FOIA requests for the records that Defendant failed to publish in the F.R., C.F.R., and electronically. As a result, the Court dismisses these claims for lack of prudential subject-matter jurisdiction. See Hull, 656 F.3d at 1180 ("[C]ourts have often held that a party's failure to file a FOIA request that complies with the agency's rules and procedures for filing such a request constitutes failure to exhaust administrative remedies."); Durham v. United States, No. CIV 08-0201 JB/ACT, 2008 WL 5978929, at *1 (D.N.M. Dec. 30, 2008) (unpublished) (dismissing FOIA complaint for lack of subject-matter jurisdiction because complaint bore "no indication that [the plaintiff] pursued his FOIA request before filing a suit in this Court.").

As to claims 45-47, 51, 70, and 87 through both claims numbered 95, Plaintiff failed to plead that he administratively appealed his adverse FOIA determinations and questions about the individuals who made such determinations. Plaintiff's...