                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16523         ELEVENTH CIRCUIT
                                                      OCTOBER 5, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 08-80312-CV-KLR

MORRIS KENT THOMPSON,


                                                             Plaintiff-Appellant,

                                    versus

UNITED STATES MARINE CORP,
Department of the Navy, Headquarters,

                                                            Defendant-Appellee.


                         ________________________

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

                               (October 5, 2010)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

      Morris Kent Thompson, proceeding pro se, appeals the denial of his motion
to reopen the case he brought under the Freedom of Information Act, 5 U.S.C. §

552 (“FOIA”) against the Department of the Navy (“Navy”). The district court

previously had dismissed his complaint without prejudice because Thompson had

failed to alleged that he exhausted all administrative remedies. On appeal,

Thompson argues that he is entitled to relief under FOIA because he exhausted his

administrative remedies before filing the motion to reopen his case. Since a party

seeking information under FOIA must exhaust all administrative remedies before

seeking redress in the federal courts, and in view of the fact that Thompson is free

to file a new complaint, we conclude that the district court did not abuse its

discretion in denying his motion. Therefore, we affirm the decision below.

                                     Background

      In March 2008, Thompson filed a civil action under FOIA, 5 U.S.C. § 552,

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

and the Navy had investigated him without his knowledge. 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

five documents purporting to demonstrate his failed attempts to obtain information

from the federal agencies.

      In his Report and Recommendation, the magistrate judge recommended that



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the district court dismiss Thompson’s complaint for lack of subject matter

jurisdiction because Thompson had failed to exhaust administrative remedies

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

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

Thompson did not allege in his complaint that he ever pursued the appeal. Thus,

the magistrate judge concluded that Thompson had not exhausted his

administrative remedies as is required by FOIA.

      In June 2008, the district court adopted the magistrate’s Report and

Recommendation and dismissed Thompson’s complaint “for lack of subject matter

jurisdiction.” When Thomas later moved to include documents showing that he

had exhausted administrative remedies, the district court denied his motion, noting

that Thompson could “refile the action provided that he allege[] exhaustion of

administrative remedies.” In September 2009, Thompson filed a “motion to open a

closed case,” stating that he had exhausted all of his administrative remedies since

the dismissal of his original complaint and requesting that the court allow him a

jury trial to obtain “redress, damages, and potential criminal charges.” The district

court denied the motion without explanation. Thomas subsequently filed a

“motion for clarification,” again requesting the court to grant his motion to open a

closed case, and asking for clarification as to why the court did not rule on his



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motion to proceed in forma pauperis. The district court denied the motion, noting

that because Thompson had appealed the dismissal of his 2008 complaint but had

not prosecuted his appeal, and because the Supreme Court had denied certiorari in

the matter, the case was closed to further proceedings.

      On appeal, Thompson argues that the Navy’s investigation of him violated

his due process and equal protection rights, and requests that this court require the

federal agencies to divulge the identities of the individuals investigating him and

explain the purpose of that investigation. The Navy has not filed a response brief.

                                      Discussion

      Thompson’s “motion to open a closed case” is properly construed as a

request for relief from judgment made under Fed. R. Civ. P. 60(b). We review a

district court’s denial of a Rule 60(b) motion for an abuse of discretion. See, e.g.,

Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842-43 (11th Cir.

2008). An appeal of a ruling on a Rule 60(b) motion is “narrow in scope,

addressing only the propriety of the denial or grant of relief and does not raise

issues in the underlying judgment for review.” Am. Bankers Ins. Co. v.

Northwestern Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 2009) (citation

omitted). Therefore, in ruling upon the district court’s decision to deny

Thompson’s motion to reopen his case, we will not consider the merits of his



                                           4
claims brought under FOIA.

      Absent exceptional circumstances, we decline to consider legal arguments

made for the first time on appeal. See Dean Witters Reynolds, Inc. v. Fernandez,

741 F.2d 355, 360 (11th Cir. 1984) (noting the few exceptional circumstances

under which this court has exercised its discretion to consider new arguments). We

will not consider here Thompson’s claim that the Navy has violated his due

process and equal protection rights; because Thompson’s original complaint was

dismissed without prejudice, he is free to present any allegations of constitutional

violations in a new complaint.

      FOIA requires a federal agency, upon a request for records that reasonably

describes documents held by that agency, to make those documents promptly

available to any individual unless the information within the records is protected

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

may bring in federal court a private cause of action under FOIA to enjoin a federal

agency that has improperly withheld records. See id. § 552(g)(1). However, as

this court made clear in Taylor v. Appleton, “FOIA clearly requires a party to

exhaust all administrative remedies before seeking redress in the federal courts.”

30 F.3d 1365, 1367 (1994) (emphasis added).

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



                                          5
constructively exhausted his administrative remedies.” See id. at 1370. Although

the Navy notified Thompson of his right to appeal its decision regarding his

request made under FOIA, Thompson’s complaint does not allege that he ever

pursued the appeal. When he became dissatisfied with the Navy’s response that it

was not the custodian of the documents sought by Thompson, he filed this lawsuit

rather than pursue all available administrative remedies. Thus, the district court

properly dismissed Thompson’s FOIA claim. However, the district court should

have dismissed the FOIA claim pursuant to Rule 12(b)(6) for failure to state a

claim upon which relief can be granted, rather than for lack of subject matter

jurisdiction: Exhaustion of administrative remedies is not a jurisdictional

requirement, but “performs a function similar to the judicial doctrine of ripeness by

postponing judicial review.”      Taylor, 30 F.3d at 1367 n.3 (citing Dresser

Industries, Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979)).

      Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, a litigant’s pro se status in

civil litigation generally will not excuse mistakes he makes regarding procedural

rules. McNeil v. United States, 508 U.S. 106, 113 (1993).

                                     Conclusion



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      Although we can sympathize with Thompson’s attempts to obtain the

information he seeks from the federal agencies, we conclude that Thompson must

allege that he has exhausted all of his administrative remedies before a federal

court may exercise jurisdiction over claims brought under FOIA. Accordingly, we

affirm the district court’s order denying Thompson’s motion to reopen his

previously dismissed FOIA complaint, but we note that he may refile his

complaint.

      AFFIRMED.




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