“Constructive Exhaustion Sets the Clock” – Fifth Circuit Clarifies FOIA & Privacy Act Accrual and Rejects Continuing-Violation Tolling

Introduction

Brook v. Holzerland, Nos. 24-40640 & 25-40014 (5th Cir. Aug. 7, 2025) is a consolidated appeal arising from Adam Brook’s suit against the U.S. Department of Health and Human Services (HHS) and its FOIA officer, William Holzerland. Brook sought release of documents under both the Freedom of Information Act (FOIA) and the Privacy Act after the Department allegedly failed to provide records responsive to three 2016 requests. Although his administrative appeal languished for six years, Brook waited until October 2023 to file suit. The core questions were:

• When does a FOIA/Privacy Act cause of action “accrue” for purposes of the statute of limitations?
• Does an agency’s continuous failure to disclose create a “continuing violation” that restarts the limitations clock?
• Can equitable tolling or estoppel salvage an otherwise time-barred information-access claim?

The Fifth Circuit answered these questions decisively against Brook, strengthening a limitations framework that hinges on constructive exhaustion and narrowing opportunities for equitable relief.

Summary of the Judgment

The panel (Judges Wiener, Willett, and Ho) affirmed the district court’s dismissal:

• FOIA claims: Barred by the six-year statute of limitations in 28 U.S.C. § 2401(a). The limitations period begins when the requester constructively exhausts administrative remedies—i.e., 20 working days after an agency fails to act on a request (initial response) or appeal. Subsequent agency action or inaction does not restart the clock.
• Privacy Act claims: Barred by the two-year limitation in 5 U.S.C. § 552a(g)(5). The period starts when the plaintiff knew or should have known of the alleged violation.
• Continuing-violation theory: Rejected. FOIA claims are not torts; each unlawful withholding does not constitute a new, separately actionable injury.
• Equitable tolling/estoppel: Denied. Brook failed to show extraordinary circumstances or affirmative misconduct, and the panel bypassed the unresolved question whether § 2401(a) is jurisdictional.

Analysis

1. Precedents Cited and Their Influence

• Voinche v. FBI (5th Cir. 1993) – Established that administrative remedies under FOIA are deemed exhausted if the agency misses statutory deadlines. Brook relied on this line of authority insofar as it defines exhaustion; the court used it to mark the moment the limitations period starts.
• Spannaus v. DOJ (D.C. Cir. 1987) – Recognized two separate FOIA deadlines (initial request and appeal). The Fifth Circuit imported Spannaus’s framework to peg constructive exhaustion at 20 working days post-deadline.
• Goldgar v. Office of Administration (5th Cir. 1994) – Clarified FOIA elements: improper withholding of agency records. The panel drew upon Goldgar to explain why the “injury” is the withholding itself, not the agency’s later denial.
• Various unpublished or out-of-circuit authorities (Kemmerly, Curry, Rahim, Reep, et al.) were marshalled to demonstrate nationwide uniformity: limitation runs from constructive exhaustion and is six years.
• Equitable tolling cases – Jones v. Lumpkin and Vuoncino v. Forterra set high bars for tolling; Robertson-Dewar set standards for estoppel. These guided the court in refusing Brook’s equitable pleas.

2. The Court’s Legal Reasoning

1. Statutory Text – Section 552(a)(6)(C)(i) deems remedies exhausted when deadlines lapse; § 2401(a) requires suit within six years after the “right of action first accrues.” Reading these provisions together, accrual coincides with constructive exhaustion.
2. Rejection of Continuing-Violation Doctrine – The panel stressed that FOIA is not a tort regime; its injury model doesn’t contemplate a rolling accrual. Accepting Brook’s theory would “nullify” § 2401(a).
3. Single-event Accrual for Both Initial Response and Appeal Paths – Whether Brook proceeded via actual appeal denial or constructive exhaustion, both situations yield one moment of accrual, not two discrete causes of action.
4. Privacy Act Parallelism – The same logic applies; “liability created under this section” (5 U.S.C. § 552a) embraces disclosure claims under § 552a(d), and the two-year clock starts with knowledge of improper withholding.
5. Equitable Relief Denied – No extraordinary circumstance, misrepresentation, or diligence gap excused the late filing. The court sidestepped the “jurisdictional” debate over § 2401(a) as unnecessary to decision.

3. Potential Impact of the Judgment

Brook v. Holzerland cements within the Fifth Circuit—and aligns with other circuits—a stringent limitations regime for record-access litigation:

• Hard Clock on Constructive Exhaustion – Requesters must sue within six years (FOIA) or two years (Privacy Act) from the first day suit could have been filed, regardless of later agency correspondence.
• Deterrence of Delay Tactics – Plaintiffs can no longer rely on agency silence or prolonged negotiations to keep a claim alive; counsel will likely file “protective” suits earlier.
• Guidance for Equitable Tolling Pleas – The opinion sketches what does not qualify as “extraordinary” (mere agency delay or courtesy updates) and may narrow future tolling arguments.
• Unresolved Jurisdictional Question Narrowed – Though the panel side-stepped whether § 2401(a) is jurisdictional, its dictum signals that equitable tolling, even if available, will be sparingly granted—diminishing the practical importance of the jurisdictional label.
• Alignment with D.C. Circuit Doctrine – By mirroring D.C. precedents, the Fifth Circuit promotes national uniformity—important because federal agencies reside in D.C. but face litigation nationwide.

Complex Concepts Simplified

• Constructive Exhaustion: FOIA lets requesters treat administrative remedies as finished if the agency blows statutory deadlines (20 working days for both initial response and appeal). Think of it as an automatic green light to sue.
• Accrual: The moment a plaintiff is legally allowed to file suit. Under FOIA, that’s when constructive (or actual) exhaustion occurs.
• Continuing-Violation (or continuing-tort) Doctrine: In some tort or discrimination contexts, each wrongful act resets the limitations period. The Fifth Circuit says this doctrine does not apply to FOIA or Privacy Act withholding claims.
• Equitable Tolling: A judge-made doctrine that pauses the limitations clock if extraordinary circumstances beyond the plaintiff’s control prevent timely filing and the plaintiff acted diligently.
• Equitable Estoppel: Prevents a defendant from asserting a limitations defense if its affirmative misconduct misled the plaintiff into missing the deadline.

Conclusion

Brook v. Holzerland fortifies a bright-line rule: Under FOIA, the six-year statute of limitations begins the day constructive exhaustion occurs; under the Privacy Act, two years run from the plaintiff’s awareness of the withholding. Later agency denials, courtesy letters, or prolonged silence do not resurrect claims. The Fifth Circuit’s emphatic rejection of continuing-violation theory, coupled with a skeptical posture toward equitable tolling, sends a clear message to practitioners: sue early or risk forfeiture. The decision adds doctrinal clarity, promotes national uniformity, and prevents the effective nullification of statutory limitations—ensuring that government agencies and courts alike can rely on predictable temporal boundaries for information-access litigation.