              Case: 11-11782    Date Filed: 09/27/2012   Page: 1 of 5

                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                      _____________________________

                               No. 11-11782
                           Non-Argument Calendar
                      _____________________________

                     D. C. Docket No. 9:10-cv-81233-KLR


MORRIS KENT THOMPSON,

                                                                Plaintiff-Appellant,
     versus

DEPARTMENT OF THE NAVY, HEADQUARTERS,
UNITED STATES MARINE CORPS,

                                                              Defendant-Appellee.

               _________________________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
               _________________________________________

                               (September 27, 2012)

Before WILSON, FAY, and EDMONDSON, Circuit Judges.


PER CURIAM:
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       Morris Kent Thompson, proceeding pro se, appeals the dismissal of his

Freedom of Information Act (“FOIA”) complaint brought under 5 U.S.C. § 552

against the Department of the Navy, Headquarters United States Marine Corps

(“Navy”), for failure to exhaust administrative remedies. On appeal, Thompson

argues that he is entitled to relief because he exhausted his administrative

remedies. No reversible error has been shown; we affirm.

       In October 2010, Thompson filed a civil action under the FOIA, naming the

Navy as the defendant and alleging that the U.S. Department of Justice and the

Navy had investigated him without his knowledge.1 He requested that the district

court require the Navy to inform him why his military records were requested and

who authorized them to be released from storage. He also attached several

documents purporting to demonstrate his failed attempts to obtain information

from the federal agencies.2

   1
     Thompson brought his first FOIA lawsuit against the Navy in March 2008, which the district
court dismissed, without prejudice, for failure to exhaust administrative remedies. Thompson
later filed a motion to reopen his complaint, alleging that he had since exhausted his
administrative remedies; but the district court denied his motion to reopen. On appeal, this Court
affirmed the denial of Thompson’s motion to reopen his previously dismissed complaint; but we
noted that, because his original complaint was dismissed without prejudice, he could refile his
complaint. See Thompson v. U.S. Marine Corp., 398 Fed.Appx. 532 (11th Cir. 2010)
(unpublished).
   2
     Thompson filed a FOIA request with the Navy on 22 October 2007. On 6 December 2007,
the Navy advised Thompson that it was not required to disclose the names of third-party persons
due to privacy concerns. On 5 May 2008, the Navy sent Thompson a second response, informing
him of his right to appeal within 60 days. On 29 April 2009, Thompson filed a request for an

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       In her Report and Recommendation (“R&R”), the magistrate judge

recommended that the district court grant the Navy’s motion to dismiss

Thompson’s complaint for failure to state a claim on which relief could be

granted, because Thompson had failed to exhaust administrative remedies timely

before filing his FOIA complaint. The magistrate noted that, although the Navy

notified Thompson of his right to appeal its response to his FOIA request,

Thompson had failed to demonstrate in his complaint that he filed a timely appeal.

Thus, the magistrate concluded that Thompson had not exhausted his

administrative remedies as is required by the FOIA. The district court adopted the

R&R and granted the Navy’s motion to dismiss.3




administrative hearing with the FOIA Appeals Office of the Navy, which the Navy interpreted as
an appeal. On 25 June 2009, the Navy responded that it would not adjudicate Thompson’s
appeal because it was not timely filed.
   3
     The district court seems to have erred when it considered documents attached to the Navy’s
motion to dismiss and failed to convert the motion into a motion for summary judgment. See
Fed.R.Civ.P. 12(d) (holding that when “matters outside the pleadings are presented to and not
excluded by the [district] court [in a Fed.R.Civ.P. 12(b)(6) motion], the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion”). But any error by the district court in
failing to convert the Navy’s motion to dismiss into a motion for summary judgment was
harmless, based on Thompson’s acts and the clear and uncontested facts showing that Thompson
failed to appeal timely the Navy’s adverse response to his FOIA request. See Trustmark Ins. Co.
v. ESLU, Inc., 299 F.3d 1265, 1268 (11th Cir 2002) (concluding that “[i]n a situation in which
the parties fully understand the true nature of the motion and have presented all available
arguments, any error in the notice afforded the parties is harmless”).

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      We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint

as true and construing them in the light most favorable to the plaintiff. Hill v.

White, 321 F.3d 1334, 1335 (11th Cir. 2003).

      The FOIA requires a federal agency -- upon a request for records reasonably

describing documents in that agency’s possession -- to make those documents

promptly available, unless the information within the records is protected from

disclosure by a statutory exemption. 5 U.S.C. § 552a(d)(1). A plaintiff may bring

in federal court a private cause of action under the FOIA to enjoin a federal agency

that has improperly withheld records. See id. § 552a(g)(1). But as we made clear

in Taylor v. Appleton, “ [t]he FOIA clearly requires a party to exhaust all

administrative remedies before seeking redress in the federal courts.” 30 F.3d

1365, 1367 (11th Cir. 1994) (emphasis added).

      Under the facts alleged in Thompson’s complaint, he “neither actually nor

constructively exhausted his administrative remedies.” See id. at 1370. Although

the Navy notified Thompson, on 5 May 2008, that he had 60 days to appeal its

decision on his request made under the FOIA, Thompson failed to file a notice of

appeal until 29 April 2009. When he became dissatisfied with Navy’s response

that it was not the custodian of the documents sought by Thompson, he filed a

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second lawsuit, even though he had failed to pursue timely all available

administrative remedies. Thus, the district court properly dismissed Thompson’s

FOIA claim.

      AFFIRMED.




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