                                                                            FILED
                                                                            FEB 11 2010
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



MARTIN BETTWIESER,                               No. 07-35964

             Plaintiff - Appellant,              D.C. No. CV-06-00142-WFN

  v.
                                                 MEMORANDUM *
MARTIN LUCAS; LISA
BUTTERWORTH; JIM SYKES; UNITED
STATES POSTAL SERVICE,

             Defendants - Appellees.



                   Appeal from the United States District Court
                             for the District of Idaho
               William Fremming Nielson, District Judge, Presiding

                           Submitted February 1, 2010 **
                               Seattle, Washington

Before: ALARCÓN, W. FLETCHER and RAWLINSON, Circuit Judges.

       Martin Bettwieser, an employee of the United States Postal Service

(“USPS”), appeals from the district court’s order dismissing his complaint with

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
prejudice, for failure to exhaust administrative remedies. The order also denied

Bettwieser’s motion for default judgment and overruled his objection to the United

States Attorneys’ Office’s representation of the individually named defendants. In

his opening brief, Bettwieser raised numerous issues for appeal. We dismiss this

appeal for lack of subject matter jurisdiction because Bettwieser failed to exhaust

administrative remedies.

      Prior to filing his complaint in the district court, Bettwieser sent a request for

production of documents pursuant to the Freedom of Information Act and the

Privacy Act to Lisa Butterworth, the Manager of Customer Service at the USPS

branch where Bettwieser works. Jim Sykes, the Manager of Labor Relations for

the Spokane District, sent a letter to Bettwieser that instructed him to direct any

appeal of the response to the request for documents to the Chief Counsel of

Customer Protection and Privacy of the USPS in Washington, D.C. According to

the November 6, 2006 declaration of Anthony Alvaro, Chief Counsel of the USPS,

no appeal was ever filed.

       “Exhaustion of a parties’ [sic] administrative remedies is required under the

FOIA before that party can seek judicial review.” In re Steele, 799 F.2d 461, 465

(9th Cir. 1993).

      In Laing v. Ashcroft, 370 F.3d 994, 1001 (9th Cir. 2004), the Ninth Circuit


                                           2
held that “exhaustion of administrative remedies may not be required when (1)

available remedies provide no genuine opportunity for adequate relief; (2)

irreparable injury may occur without immediate judicial relief; (3) administrative

appeal would be futile; and (4) in certain instances a plaintiff has raised a

substantial constitutional question.” Id. at 1000-01; quoting Beharry v. Ashcroft,

329 F.3d 51, 62 (2d Cir. 2003) (internal citations and quotation marks omitted).

      Bettwieser has not demonstrated that he did not receive a genuine

opportunity for adequate relief, that he would suffer irreparable injury without

immediate judicial relief, that an administrative appeal would be futile, nor has he

raised a substantial constitutional question.

       The district court properly dismissed the action for lack of subject matter

jurisdiction under Rule 12(b)(1).1 Since there is no jurisdiction for this Court

either until administrative remedies are exhausted, we will not reach any issues

Bettwieser has raised in his appeal to this Court.

      DISMISSED.


      1
         While the district court’s order dismissed the complaint before it with
prejudice for failure to exhaust administrative remedies, the district court’s order
will not preclude Bettwieser from pursuing an attempt to seek an administrative
remedy, if it is timely, or seeking timely judicial review of an adverse final
decision. See City of Oakland v. Hotels.com LP, 572 F.3d 958, 962 (9th Cir. 2009)
(“[F]ailure to exhaust administrative remedies is properly treated as a curable
defect and should generally result in a dismissal without prejudice”).

                                           3
