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. 40

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 several individual defendants in connection with various 20 employment, benefits, and pay-related disputes. The court granted defendant Forest Service’s 21 first motion to dismiss, ECF No. 28, and dismissed plaintiff’s original complaint without 22 prejudice, ECF Nos. 34 & 37. Plaintiff’s first amended complaint renews only her Freedom of 23 Information Act claim against defendant Forest Service. ECF No. 38.1 Defendant Forest Service 24 argues that plaintiff failed to exhaust her administrative remedies and moves to dismiss under 25 Rule 12(b)(6). ECF No. 40. I recommend that defendant’s motion be granted and that this action 26 be dismissed with prejudice. 27 1 Plaintiff’s original complaint also brought claims under the Privacy Act, the Declaratory 28 Judgments Act, the Family and Medical Leave Act, and various federal regulations. ECF No. 1. 1 Background 2 This case stems from a dispute between plaintiff and defendant Forest Service, a 3 component of the United States Department of Agriculture (“USDA”), regarding plaintiff’s 4 employment, the payment of her health benefits, and debts assessed by the Forest Service for 5 salary overpayments and unpaid healthcare premiums. ECF No. 38 at 2-3. The facts of that 6 dispute are set out in detail in the undersigned’s September 9, 2022 findings and 7 recommendations, ECF No. 34, which were adopted by the court on October 11, 2022, ECF No. 8 37, but they are not essential to the resolution of the instant motion. 9 In the first amended complaint, plaintiff alleges that defendant Forest Service violated her 10 rights under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), by failing to produce 11 various records upon her request, ECF No. 38. She alleges that on October 30, 2018, she sent a 12 letter to the Forest Service Director, Ted Gutman, that included a proper request for records under 13 FOIA. Id. at 3-4, 8-13.2 The portion requesting access to documents appears on page four of six 14 and reads: 15 I am requesting that the Agency provide an explanation as to the authorities that permitted the action/inactions taken against me 16 while I was an approved participant in the Voluntary Leave Transfer Program. Additionally, please provide the Agency’s 17 supporting documentation (to include but not limited to reports 18 such as Time and Attendance (T&A) reports, NFC generated reports, etc., and/or directives) that was relied upon to support the 19 adverse actions taken against me and what corrective action(s), if applicable, the Agency plans to take. 20 21 Id. at 8. 22 Defendant Forest Service argues that plaintiff’s October 2018 letter was not a proper 23 FOIA request and that plaintiff therefore failed to exhaust her administrative remedies. ECF 24 No. 40 at 4. 25 26 2 The letter, which is attached to the complaint, indicates that it was also sent to the 27 following individuals: Randy Moore, Regional Forester, USDA Forest Service, Pacific Southwest Region; Gene Blankenbaker, Deputy Director, ASC-HRM; Dwayne Brown, Supervisory HR 28 Specialist (Pay); and Patrick Petracca, Program Manager (Benefits). ECF No. 38 at 8 & 13. 1 Legal Standards 2 A. Rule 12(b)(6) Standards 3 A complaint may be dismissed for “failure to state a claim upon which relief may be 4 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 5 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 6 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 7 pleads factual content that allows the court to draw the reasonable inference that the defendant is 8 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 9 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it 10 requires more than a sheer possibility that a defendant has acted unlawfully. Id. 11 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 12 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 13 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 14 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 15 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal 16 under Rule 12(b)(6) can be based on either: (1) lack of a cognizable legal theory, or 17 (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. 18 Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. 19 Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). 20 “A document filed pro se is to be liberally construed, and a pro se complaint, however 21 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by 22 lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 23 Discussion 24 “FOIA requires federal agencies to disclose information to the public upon request.” 25 Aguirre v. U.S. Nuclear Regul. Comm’n, 11 F.4th 719, 725 (9th Cir. 2021) (citing 5 U.S.C. 26 § 552(a)(3)(A)). FOIA provides for a civil action, id. § 552(a)(4)(B), when “an agency has 27 (1) improperly; (2) withheld; (3) agency records,” Luis v. U.S. Dep’t of the Interior, No. 1:15-CV- 28 01412-LJO-EPG, 2016 WL 80631, at *2 (E.D. Cal. Jan. 7, 2016) (quoting Kissinger v. Reporters 1 Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)) (internal marks omitted). 2 “Exhaustion of a parties’ administrative remedies is required under the FOIA before that party 3 can seek judicial review.” In re Steele, 799 F.2d 461, 465 (9th Cir. 1986). “Exhaustion under 4 FOIA is a prudential rather than jurisdictional consideration.” Aguirre, 11 F.4th at 725 (citing 5 Yagman v. Pompeo, 868 F.3d 1075, 1083-84 (9th Cir. 2017)). The FOIA exhaustion requirement 6 can be waived pursuant to a “constructive-exhaustion provision, under which requestors are 7 deemed to have exhausted their remedies when an agency misses a statutory deadline.” Id. (citing 8 5 U.S.C. § 552(a)(6)(C)(i)). 9 “An agency’s disclosure obligations are not triggered, however, until it has received a 10 proper FOIA request in compliance with [the agency’s] published regulations.” Antonelli v. Fed. 11 Bureau of Prisons, 591 F. Supp. 2d 15, 26 (D.D.C. 2008) (citations omitted); see also In re 12 Steele, 799 F.2d at 466 (holding that administrative exhaustion requires the plaintiff to show that 13 she “request[ed] specific information in accordance with published administrative procedures”) 14 (citations omitted). The USDA’s FOIA regulations permit an individual to submit FOIA requests 15 (1) “in writing . . . to the designated component listed on the USDA’s website that maintains the 16 records requested,” (2) “electronically via USDA’s online web portal,” (3) by email to 17 “component FOIA offices as listed on the USDA public FOIA website,” or (4) by “send[ing] a 18 request to the Departmental FOIA Officer.” 7 C.F.R. §§ 1.3(a)(1)-(3). The regulations further 19 state that “[t]o facilitate the processing of a request, a requester should place the phrase ‘FOIA 20 REQUEST’ in capital letters on the front of their envelope, the cover sheet of their facsimile 21 transmittal, or the subject line of their email.” Id. § 1.3(a)(4). 22 As explained in the court’s order dismissing plaintiff’s original complaint, ECF No. 37, 23 plaintiff’s October 2018 letter lacks indicators that it is a FOIA request. Plaintiff’s first amended 24 complaint fails to identify such indicators or provide additional allegations regarding her request; 25 rather, in her opposition, she rehashes her argument that “a person need not title a request for 26 government records a ‘FOIA request.’” ECF No. 41 at 4 & 14 (citing Ruotolo v. Dep’t of Just., 27 Tax Div., 53 F.3d 4, 10 (2d Cir. 1995), and Stockton E. Water Dist. v. United States, No. 2:08- 28 CV-0563-GEB-GGH, 2008 WL 5397499 at *2 (E.D. Cal. Dec. 19, 2008)). Plaintiff’s cited 1 authorities are inapposite. In Ruotolo, the Second Circuit held that Department of Justice FOIA 2 regulations required the CIA to assist a requester in reformulating a FOIA request that was overly 3 broad or burdensome. 53 F.3d at 10 (citing 28 C.F.R. § 16.3(d)). However, there was no dispute 4 that the plaintiff had made a FOIA request that otherwise complied with agency regulations. See 5 id. at 8-11. In Stockton E. Water Dist., a judge from this district held, inter alia, that the 6 defendants “had no obligation to respond to [a] letter [sent by the plaintiff] because the letter was 7 not a proper FOIA request.” 2008 WL 5397499 at *2 (citing Thomas v. F.C.C., 534 F. Supp. 2d 8 144, 145 (D.C. Cir. 2008)). The court observed that the plaintiff’s request lacked a “confirmation 9 that the requester is willing to pay all fees,” was not addressed to the agency’s FOIA officer, and 10 did not include “the words ‘FOIA REQUEST’ prominently displayed on the request letter.” Id. 11 Thus, the court credited the defendants’ contention that they had “perceived [the letter] to be part 12 of the longstanding and ongoing communications and litigation between [the plaintiff] and [the 13 agency]” rather than a request under FOIA. Id. (internal marks omitted). 14 Like the letter in Stockton E. Water Dist., plaintiff’s letter was not a proper FOIA request 15 and so did not trigger defendant’s disclosure obligations. Plaintiff makes no allegation that she 16 identified her request as a “FOIA REQUEST” either in the body of the letter or at any time prior 17 to filing suit. The letter describes itself as “a formal request for assistance” to resolve plaintiff’s 18 employment, benefits, and pay-related disputes. ECF No. 38 at 8 & 13. It devotes several pages 19 to explaining the nature of the dispute, attributing wrongdoing to various Forest Service 20 employees and requesting remedies unrelated to any requests for documents. The lone request for 21 documents appears on the fourth page of six, and is not limited to a request for documents. 22 Rather, it requests “an explanation as to the authorities that permitted the action/inactions taken 23 against [her]” and includes a request for “supporting documents . . . that was [sic] relied 24 upon . . . .” Id. at 11. Plaintiff does not allege that the letter—or any accompanying 25 communications—included “a statement indicating willingness to pay any applicable processing 26 fees.” 7 C.F.R. § 1.3. And nothing before the court suggests that any of the individuals to whom 27 she sent her letter were proper recipients of a FOIA request under 7 C.F.R. §§ 1.3(a)(1)-(3). 28 Since it is apparent that plaintiff made no “attempt to comply fully with agency 1 procedures,” it would be improper to construe her letter as a FOIA request that triggered the 2 agency’s obligations or FOIA’s constructive-exhaustion provision. In re Steele, 799 F.2d at 466 3 (explaining that the district court committed reversable error when it “construed [an] informal 4 discovery letter and subsequent motion for discovery as a FOIA request”); see also Stein v. C. 5 Intelligence Agency, 454 F. Supp. 3d 1, 22-23 (D.D.C. 2020) (holding that the defendant agency’s 6 obligations under FOIA were not triggered by emails that “did not comply with the agency’s 7 regulations for submitting FOIA requests”); Stockton E. Water Dist., 2008 WL 5397499 at *2. 8 Thus, the first amended complaint fails to state a FOIA claim. 9 I recommend that the first amended complaint be dismissed without leave to amend. In 10 her amended complaint, plaintiff has omitted several claims previously found insufficient, but she 11 has failed to improve her remaining allegations. Neither her first amended compliant nor her 12 opposition to defendant’s motion to dismiss give the court reason to believe that further 13 amendment could cure the deficiencies identified herein. See California Architectural Bldg. 14 Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1988) (“Valid reasons for denying 15 leave to amend include undue delay, bad faith, prejudice, and futility.”); cf. Lopez v. Smith, 203 16 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (holding that district courts must afford pro se litigants 17 an opportunity to amend when it appears possible that they can correct the deficiencies in their 18 complaints). 19 Accordingly, it is hereby RECOMMENDED that: 20 1. Defendant’s motion to dismiss, ECF No. 40, be granted. 21 2. Plaintiff’s first amended complaint, ECF No. 38, be dismissed without leave to amend. 22 3. The Clerk of Court be directed to close the case. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be served and filed within fourteen days after service of the objections. The 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 3 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED.

Dated: _ May 12, 2023 Q_——_. 7 JEREMY D. PETERSON 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28