IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________ No. 09-14640-H _____________________________ ROLAND ALLEN, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. ______________________________ On Appeal from the United States District Court for the Northern District of Alabama District Court No. 2:09-cv-00733-LSC ______________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DONNA J. BRUSOSKI EQUAL EMPLOYMENT OPPORTUNITY Attorney COMMISSION Office of General Counsel 131 M Street, N.E. Washington, DC 20507 (202) 663-7049 donna.brusoski@eeoc.gov CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Hon. L. Scott Coogler, U.S. District Judge, N.D. Ala. Equal Employment Opportunity Commission (EEOC), Appellee Roland Allen, Appellant James L. Lee, Deputy General Counsel Vincent J. Blackwood, Acting Associate General Counsel, EEOC Carolyn L. Wheeler, Assistant General Counsel, EEOC Donna J. Brusoski, Attorney, EEOC James G. Allison, Attorney, EEOC C. Emanuel Smith, Regional Attorney, Birmingham DO, EEOC _________________________ Donna J. Brusoski STATEMENT REGARDING ORAL ARGUMENT This case involves a straightforward application of well-settled principles of law. The Commission therefore believes oral argument is unnecessary. TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ................................................ C-1 of 1 STATEMENT REGARDING ORAL ARGUMENT ........................................... i TABLE OF AUTHORITIES ...................................................... iv TABLE of SUPPLEMENTAL RECORD REFERENCES in the BRIEF........................ vi STATEMENT OF JURISDICTION ................................................... 1 STATEMENT OF THE ISSUES ..................................................... 2 STATEMENT OF THE CASE ....................................................... 2 A. Course of Proceedings and Disposition Below ............................ 2 B. Statement of Facts .................................................... 3 C. District Court Decision ............................................... 5 STANDARD OF REVIEW ......................................................... 7 SUMMARY OF ARGUMENT ......................................................... 7 ARGUMENT I. The district court properly held that Allen's failure to exhaust his administrative remedies is fatal to his FOIA claim ............................................................... 8 II. The district court properly held that Allen did not present a cognizable claim against the EEOC under 42 U.S.C. § 1983 ..................................... 11 CONCLUSION ................................................................. 12 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) .............................................. 2,6 Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ............................. 10 District of Columbia v. Carter, 409 U.S. 418 (1973)........................ 6,12 EPA v. Mink, 410 U.S. 73 (1973) ............................................ 10 FDIC v. Meyer, 510 U.S. 471 (1994) .......................................... 6 Four Seasons Hotel and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164 (11th Cir. 2004) ...................................... 11 Grossman v. Nationsbank, N.A., 225 F.3d 1228 (11th Cir. 2000) ............. 7,9 Hindman v. Healy, 278 Fed. Appx. 893 (11th Cir. 2008)...................... 6,12 Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771 (D.C. Cir. 2002)......................................... 3 Kasprik v. United States, 87 F.3d 462 (11th Cir. 1996) ...................... 7 Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994) ................... 5,7,8,9,11 Thompson v. Walbran, 990 F.2d. 403 (8th Cir. 1993)........................... 3 STATUTES, ACTS, and REGULATIONS Freedom of Information Act, 5 U.S.C. § 552............................. passim 5 U.S.C. § 552(a)(4)(B) .............................................. 2 5 U.S.C. § 552(b) ................................................... 4 28 U.S.C. § 1291 ............................................................ 2 28 U.S.C. § 1331 ............................................................ 1 42 U.S.C. § 1983 ....................................................... passim Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.......... 10 29 C.F.R. § 1610.11 ........................................................ 4 29 C.F.R. § 1610.11(a)....................................................... 9 Fed.R.App.P. 4(a)(1)(B)...................................................... 2 Fed.R.Civ.P. 12(b)(6)...................................................... 7,8 TABLE of RECORD REFERENCES in the BRIEF Brief Page # Docket # 1,2,3, Memorandum Opinion 28 5,6,10,11 1,3,6 Order on Summary Judgment Motions 29 2,3,6 Notice of Appeal 30 2,5 Complaint 1 2,9 Amended Complaint 4 2 Summons Issued to C. Emanuel Smith and U.S. EEOC Office 7 2 Amended Complaint Served on C. Emanuel Smith 8 2 Amended Complaint Served on U.S. EEOC Office 9 2 District Court docket sheet B 3 EEOC's First Motion to Dismiss and for Summary Judgment 11 3 Allen's Motion for Summary Judgment 19 3,4,5,9 EEOC's Brief re First Motion to Dismiss and for 12 Summary Judgment, Attachments #1 (Declaration and Exhibits) 9 Allen's Motion for Document 6 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________ No. 09-14640-H _____________________________ ROLAND ALLEN, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. ______________________________ On Appeal from the United States District Court for the Northern District of Alabama District Court No. 2:09-cv-00733-LSC ______________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________ STATEMENT OF JURISDICTION The district court had jurisdiction under 28 U.S.C. § 1331. On September 2, 2009, the district court issued an opinion (SRE, DN28),<1> and a separate order granting summary judgment to the defendant, denying plaintiff's motion for summary judgment, and dismissing this case. SRE, DN29. On September 8, 2009, Roland Allen filed a timely appeal under Fed.R.App.P. 4(a)(1)(B). SRE, DN30. This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUES 1. Whether the district court properly held that the appellant's failure to exhaust his administrative remedies is fatal to his Freedom of Information Act claim. 2. Whether the district court properly held that the appellant did not present a claim under 42 U.S.C. § 1983 that is cognizable against the Commission. STATEMENT OF THE CASE A. Course of Proceedings and Disposition Below On April 16, 2009, pro se plaintiff Roland Allen (Allen") filed this action against the Equal Employment Opportunity Commission ("the Commission" or "the EEOC") and EEOC Regional Attorney C. Emanuel Smith. SRE, DN1. On May 4, 2009, he filed an amended complaint alleging violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and 42 U.S.C. § 1983. SRE, DN4.<2> The Commission moved for dismissal and/or summary judgment on all of Allen's claims. SRE, DN11. Allen moved for summary judgment. SRE, DN19. On September 2, 2009, the district court issued an opinion setting forth the reasons the Commission's motion for summary judgment should be granted and Allen's motion for summary judgment should be dismissed. SRE, DN28. On that same date, the court entered an order dismissing the case. SRE, DN29. Allen filed a notice of appeal on September 8, 2009. SRE, DN30. B. Statement of Facts On October 2, 2008, Roland Allen made a written request to the EEOC's Birmingham Regional Attorney for a copy of the EEOC's investigative file opened in response to the charge of discrimination Allen had filed with the Commission. SRE, DN12.1, Ex.1. The Commission treated Allen's letter as a FOIA request. In an October 8, 2008, letter, Regional Attorney Smith acknowledged receipt of Allen's letter and explained the process the office follows upon receipt of such a request. SRE, DN12.1, Ex.2. That process includes confirming that the requested file exists and is located in the Birmingham District Office, confirming that the requester is entitled to copies of documents from the file, processing the request, and notifying the requester of the Commission's response. Id. At the time of his FOIA request, the Commission was investigating Allen's charge of employment discrimination. SRE, DN12.1, declaration of Stephanie D. Garner at ¶ 5. On November 6, 2008, Regional Attorney Smith again wrote to Allen, this time informing him that his request had been processed and was denied under various exemptions to FOIA, 5 U.S.C. § 552(b), subsections 3, 6, and 7. SRE, DN12.1, Ex.3; see also id. at 3 (setting out explanations of the exemptions). The letter explained that the FOIA exemptions "authorize[] the withholding of records or information complied for law enforcement purposes, but only to the extent that the production of such law enforcement records or information would interfere with enforcement proceedings." SRE, DN12.1, Ex.3. Further, the letter explained: Disclosure of the investigative file while the investigation is ongoing would ... hinder the Commission's efforts by permitting opportunities to the Respondent to retaliate against Charging Parties or other witnesses or potential witnesses who may become involved in the investigation. ... Furthermore, premature disclosure of the investigative files would impede the investigation and make the Commission's investigations more difficult to control. ... Exemption 7(A) applies "until ... all reasonable foreseeable administrative and judicial proceedings are concluded." Id. (internal citations omitted). The letter concluded by informing Allen that he had a right to appeal the denial of his request, as governed by 29 C.F.R. § 1610.11, by writing to Assistant General Counsel/FOIA Programs, Office of Legal Counsel, located at the Commission's Washington, D.C. headquarters office within 30 days of receiving the denial letter. Id.; see also SRE, DN12.1, declaration of Stephanie D. Garner at ¶¶ 3-6. Allen did not appeal to the Commission's Office of Legal Counsel. Id. at ¶ 7. In March 2009, the Commission reached a conciliation agreement that resolved Allen's employment discrimination charge. Id. at ¶ 8. On April 16, 2009, Allen filed this action in district court. SRE, DN1. C. District Court Decision The district court recognized that Allen sued the Commission for violations of FOIA and 42 U.S.C. § 1983. SRE, DN28 at 1. With respect to Allen's FOIA claim, the court stated that "'FOIA clearly requires a party to exhaust all administrative remedies before seeking redress in the federal courts.'" SRE, DN28 at 4 (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). The court explained that the exhaustion requirement, which "'is a condition precedent to filing suit[, is] intended to allow a federal agency to exercise its discretion and authority, as well as create a descriptive factual record for the district court to review if necessary.'" SRE, DN28 at 5 (quoting Taylor, 30 F.3d at 1367-68). Because there is no dispute that Allen did not file an administrative appeal with the Commission from Regional Attorney Smith's determination on his FOIA request, the court concluded that the Commission is entitled to summary judgment on Allen's FOIA claim. SRE, DN28 at 5. With respect to the section 1983 claim, the court first observed that "'[s]ection 1983 does not apply to federal actors'" - such as the Commission - "'acting under color of federal law'" - in this case, the FOIA. SRE, DN28 at 5 (quoting Hindman v. Healy, 278 Fed. Appx. 893, 895 (11th Cir. 2008), citing District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973)). Moreover, the court said, even if it "considers the possibility of a Bivens action because of plaintiff's pro se status, 'Bivens provides a remedy for constitutional violations when federal actors are involved, but not federal agencies.'" SRE, DN28 at 5 (quoting Hindman, 278 Fed. Appx. at 895, citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971), and FDIC v. Meyer, 510 U.S. 471, 486 (1994)) (emphasis added). Because the district court had terminated Regional Attorney Smith as a party, the only defendant in the case was the EEOC, a federal agency, and the court therefore concluded that his section 1983 claim must be dismissed. SRE, DN28 at 5. Accordingly, the district court granted the Commission's motion for summary judgment in all respects, and denied Allen's motion for summary judgment. SRE, DN28 at 6. Thus, the district court dismissed this suit. SRE, DN29. Allen appealed from the judgment of the district court. SRE, DN30. STANDARD OF REVIEW A district court's order granting a motion to dismiss for failure to exhaust administrative remedies is reviewed de novo. See Kasprik v. United States, 87 F.3d 462, 464 (11th Cir. 1996) ("review of a dismissal for failure to state a claim is de novo"); Taylor v. Appleton, 30 F.3d 1365, 1367 n.3 (11th Cir. 1994 (dismissal for failure to exhaust administrative remedies is treated as a Rule 12(b)(6) dismissal for failure to state a claim). A district court's order granting a motion to dismiss a section 1983 claim for failure to state a claim is likewise reviewed de novo. See, e.g., Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) ("We review de novo a district court's order dismissing a complaint for failure to state a claim upon which relief could be granted.") (citation omitted). SUMMARY OF ARGUMENT The district court properly concluded that the Commission was entitled to summary judgment on Allen's FOIA claim because he failed to exhaust his administrative remedies. On appeal, Allen does not refute, or even address, the court's conclusion that he did not exhaust his administrative remedies by administratively appealing the denial of his FOIA request. Because the district court correctly held that administrative exhaustion is required before a FOIA action may be brought in court, and Allen does not dispute that he failed to meet the exhaustion requirement, the lower court's ruling should be affirmed. Allen's effort to argue the merits of his FOIA request must be rejected because that argument should have been presented to the EEOC in the first instance in an administrative appeal. Because Allen did not exhaust that administrative remedy, the district court properly dismissed his FOIA claim without considering the merits of his underlying request. This Court should do the same. The district court also properly ruled that plaintiff's claim under 42 U.S.C. § 1983 must fail because a cause of action under section 1983 is limited to acts performed under color of state, not federal, law and section 1983 does not apply to actions of federal agencies, like the EEOC. On appeal, Allen also does not point to any error in, or even address, this aspect of the court's ruling. Because the district court properly evaluated, and dismissed, the claims before it, this Court should affirm. ARGUMENT I. The district court properly held that Allen's FOIA claim cannot survive because he failed to exhaust his administrative remedies. This Court has recognized that "FOIA clearly requires a party to exhaust all administrative remedies before seeking redress in the federal courts." Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).<3> Allen did not meet this requirement because he never appealed the Regional Attorney's November 6, 2008, denial of his FOIA request. Under 29 C.F.R. § 1610.11(a), Allen had 30 calendar days after his receipt of the Regional Attorney's denial determination within which to appeal in writing to the EEOC's Office of Legal Counsel. See Taylor, 30 F.3d at 1370 ("the exhaustion requirement was triggered once the [agency] met its obligation" to respond to the request and notified the requester of his administrative appeal rights). Allen's amended complaint did not allege that he exhausted his administrative remedies (SRE, DN4), and the record shows that he never submitted an administrative appeal. SRE, DN12.1 (Garner aff. at ¶ 7). This question has never been in dispute in this case. Moreover, in his brief on appeal, Allen neither contests these underlying facts nor the district court's reasoning and conclusions. He simply does not address the exhaustion question at all. However, it was his failure to exhaust his administrative remedies that was, and continues to be, fatal to his FOIA action. Allen appears to argue that the district court erred in granting summary judgment for the Commission without addressing his "motion for documents." See Br. at 4 (referring to SRE, DN6 (motion for documents)). However, the district court's dismissal of Allen's FOIA action for failure to exhaust administrative remedies did constitute its ruling on Allen's request that the district court order the EEOC to produce the file he requested. The court's answer was "no," because Allen did not seek the relief he wanted before the EEOC. Allen also seems to argue that he was entitled to documents in the charge file regardless of whether the investigation was ongoing when his FOIA request was denied. Br. at 3 ("if the EEOC was still investigating Allen charge pursuant to 42 U.S.C. 2000e the plaintiff have the right to the copy of the plaintiffs file"). Allen relies on Chrysler Corp. v. Brown, 441 U.S. 281, 292 (1979), in support of this argument, but Chrysler only discusses the general disclosure obligations created by FOIA, not the ongoing investigation exemption relevant to the underlying request in this case. Similarly, EPA v. Mink, 410 U.S. 73, 79 (1973), provides no guidance for the resolution of this appeal from a dismissal for failure to exhaust administrative remedies, because EPA merely discusses the general FOIA provisions and an exemption for classified secrets not at issue here. See Allen Br. at 3. More to the point, Allen should properly have raised his argument that he was entitled to the documents despite the ongoing investigation in an administrative appeal to the Commission's Office of Legal Counsel within 30 days of the denial of his request. However, he did not do so. And it was precisely because he did not pursue the administrative appeal process that the district court dismissed his FOIA claim. See SRE, DN28 at 5 ("This exhaustion requirement ... [is] intended to allow a federal agency to exercise its discretion and authority, as well as create a descriptive factual record for the district court to review if necessary." (quoting Taylor, 30 F.3d at 1367-68)). Thus, the substance of the argument Allen now raises was not before the district court, and need not be considered by this Court. See Four Seasons Hotel and Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1168-69 (11th Cir. 2004) (court generally declines to address merits of arguments not raised below). Accordingly, the district court correctly granted summary judgment and dismissed Allen's FOIA claim on the basis of his failure to exhaust administrative remedies. Allen can offer no basis to challenge this ruling. The Commission urges this Court to affirm the district court's ruling. II. The district court properly held that Allen did not present a cognizable claim against the EEOC under section 1983. In his amended complaint, Allen seemed to refer to a claim against the Commission under 42 U.S.C. § 1983.<4> The district court addressed this claim and held that section 1983 does not apply because Allen sued the EEOC, a federal agency acting under federal law. SRE, DN28 at 5. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. 42 U.S.C. § 1983 (emphasis added). As the district court recognized, the emphasized language limits liability to deprivation of Constitutional or statutory rights by persons acting under color of state law. It does not extend to claims against federal officials acting under color of federal law. Hindman v. Healy, 278 Fed. Appx. 893, 895 (11th Cir. 2008) (citing District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973)). Thus, the court correctly held that Allen cannot sue the Commission under section 1983 because FOIA is a federal law and the EEOC is a federal agency operating pursuant to federal law in processing Allen's FOIA request, as well as in investigating his charge. For these reasons, the Commission urges this Court to affirm the district court's order dismissing any asserted section 1983 claim against the Commission. CONCLUSION This Court should affirm the judgment of the district court. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ________________________ DONNA J. BRUSOSKI CAROLYN L. WHEELER Attorney Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF COMPLIANCE I hereby certify that the attached appellee brief is proportionally spaced, has a typeface of 14 points, and contains 2742 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). _______________________________ Donna J. Brusoski Attorney for Equal Employment Opportunity Commission Dated: November 30, 2009 CERTIFICATE OF SERVICE I hereby certify that the original and six copies of this brief were mailed, first class, postage prepaid, on this day, to the Office of the Clerk for the U.S. Court of Appeals for the Eleventh Circuit. In addition, a copy of this brief was uploaded to the Court's web site on November 30, 2009, in accordance with 11th Cir. R. 31-5. I also certify that one copy of this brief was mailed, first class, postage prepaid, on this day to the following: Roland Allen 7828 10th Avenue S Birmingham, AL 35206 ____________________________ DONNA J. BRUSOSKI Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-7049 donna.brusoski@eeoc.gov *********************************************************************** <> <1> "SRE" refers to the Commission's Supplemental Expanded Record Excerpts, submitted with this brief; "DN" refers to docket entries in the district court's docket sheet. <2> Plaintiff's amended complaint named only the "US EEOC Office" in its caption, and the allegations did not reference Regional Attorney Smith except in the paragraph identifying the relief sought. SRE, DN4. But plaintiff issued summons (SRE, DN7) and served his amended complaint on both the EEOC's Birmingham District Office (SRE, DN9) and C. Emanuel Smith (SRE, DN8). It appears that Regional Attorney Smith was terminated as a party defendant on August 31, 2009. See SRE B (district court docket sheet at 1). Termination was appropriate because, as the Commission argued below, the only proper defendant in a FOIA case is the agency itself, see 5 U.S.C. § 552(a)(4)(B), and no claim is available under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971),which permits suits against individual government actors in certain circumstances. See SRE, DN12 at 1 n. (citing Thompson v. Walbran, 990 F.2d. 403, 405 (8th Cir. 1993) (FOIA does not create an action against agency officials) and Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (no Bivens claim available in a FOIA action)). <3> This circuit dismisses suits that have been filed prior to the required administrative exhaustion under Rule 12(b)(6), Fed.R.Civ.P. Taylor, 30 F.3d at 1367 n.3. <4> Because there is no mention in Allen's opening brief of his section 1983 claim, it appears that he has abandoned this claim on appeal. Similarly, Allen does not challenge the termination of Regional Attorney Smith as a party, or the district court's conclusion that Allen could not state a claim under Bivens.