                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-3751
                         ___________________________

                                Darnell Wesly Moon

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                             Federal Bureau of Prisons

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                             Submitted: April 14, 2016
                               Filed: April 28, 2016
                                    [Published]
                                  ____________

Before BENTON, ARNOLD, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Darnell Moon, formerly a federal inmate at the United States Penitentiary at
Terre Haute, Indiana, appeals the district court’s preservice dismissal of his action
seeking relief under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. We
grant his motion for leave to proceed in forma pauperis.
       While we agree that a litigant must exhaust administrative remedies before
bringing a FOIA action in federal court, see Elnashar v. United States Dep’t of Justice,
446 F.3d 792, 796 (8th Cir. 2006) (exhaustion of administrative remedies is
prerequisite to bringing suit under FOIA), we conclude that because FOIA is silent as
to whether exhaustion is a pleading requirement or an affirmative defense, see 5
U.S.C. § 552, the argument of non-exhaustion is an affirmative defense rather than a
pleading requirement, see Jones v. Bock, 127 S.Ct. 910, 919 (2007) (if an act is silent
as to whether exhaustion should be pled by plaintiff or treated as affirmative defense,
general practice under Federal Rules of Civil Procedure dictates that exhaustion
should be treated as affirmative defense). Thus, Mr. Moon was not required to plead
exhaustion in his complaint.

       Accordingly, we reverse and remand for further proceedings consistent with
this opinion.
                      ______________________________




                                          -2-
