“Exhaustion as Accrual” – Brook v. Holzerland and the Fifth Circuit’s Clarification of FOIA & Privacy Act Limitation Periods

I. Introduction

Brook v. Holzerland, Nos. 24-40640 & 25-40014 (5th Cir. Aug. 7, 2025), presents the U.S. Court of Appeals for the Fifth Circuit with a straightforward—but doctrinally significant—question: when do limitation periods begin to run on Freedom of Information Act (FOIA) and Privacy Act claims? Adam Brook filed multiple FOIA requests with the U.S. Department of Health and Human Services (HHS) in early 2016. HHS partially responded to two requests, never answered the third, and delayed an administrative appeal for over six years. Brook waited until October 2023 to sue.

The district court dismissed his complaint as time-barred; the Fifth Circuit now affirms, crystallising three key propositions:

Under § 2401(a), a FOIA cause of action accrues the moment the requester constructively exhausts administrative remedies—i.e., 20 working days after the agency misses its deadline—regardless of any subsequent agency action.
FOIA’s six-year limitation is not reset by a “continuing-violation” or “continuing-tort” theory.
The Privacy Act’s two-year limitation under § 552a(g)(5) begins when the requester knew or should have known of the alleged withholding, and applies equally to disclosure-of-records claims under § 552a(d).

II. Summary of the Judgment

The Fifth Circuit, per curiam, holds that all of Brook’s FOIA and Privacy Act claims are untimely:

Request 2016-00450: No agency response. Claim accrued 20 working days after HHS received the request (April 14 2016). Six-year window closed April 14 2022.
Requests 16F116 & 16F128: Partial response received; administrative appeal filed March 13 2017. HHS failed to decide within 20 working days, so Brook constructively exhausted by April 10 2017. Six-year window closed April 10 2023.
Privacy Act: Same factual nucleus, so Brook knew (or should have known) of the alleged violation in 2016-2017. Two-year window long expired.

The court rejects Brook’s continuing-tort theory and his plea for equitable tolling/estoppel, finding no extraordinary circumstances or affirmative misconduct by the agency. It also bypasses the open intra-circuit question whether § 2401(a) is jurisdictional, concluding that equitable doctrines would fail even if available.

III. Analysis

A. Precedents Cited

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52 (D.C. Cir. 1987) – Dual 20-day “time-limit provisions” establishing constructive exhaustion.
Voinche v. FBI, 999 F.2d 962 & 983 F.2d 667 (5th Cir. 1993) – Confirmation that constructive exhaustion permits immediate suit.
Goldgar v. Office of Administration, 26 F.3d 32 (5th Cir. 1994) – Elements of a FOIA claim (improperly withheld agency records).
Rahim v. FBI, 947 F. Supp. 2d 631 (E.D. La. 2013) – Accrual upon exhaustion; cited to anchor the constructive exhaustion timeline.
Reed v. Goertz, 136 F.4th 535 (5th Cir. 2025) – Standard of review for Rule 12 dismissal.
Various unpublished cases (Reep, Curry, etc.) supporting the six-year FOIA limitation and two-year Privacy Act limitation.

The panel applies these precedents to hold that “exhaustion equals accrual.” Spannaus supplies the doctrinal fulcrum; Voinche and Rahim guide the Fifth Circuit’s own interpretation; Goldgar eliminates any injury-based framing that might invite a continuing-tort theory.

B. Legal Reasoning

Textual Hook: 28 U.S.C. § 2401(a) requires filing “within six years after the right of action first accrues.” FOIA, 5 U.S.C. § 552(a)(6)(C)(i), declares that failure to respond within statutory deadlines is deemed an “exhaustion,” thereby permitting suit. By marrying the two provisions, the court reasons that the date of constructive exhaustion is necessarily the accrual date.
Rejection of Continuing-Tort Doctrine: FOIA claims, the panel stresses, are not tort claims; injury is not an element. Accepting Brook’s view would erase § 2401(a) by allowing perpetual accrual.
No Reset by Late Agency Action: Agency silence (constructive exhaustion) and a belated formal denial are alternate routes to exhaustion, not separate causes of action. Thus a late denial cannot restart limitations.
Equitable Tolling/Estoppel: Even assuming § 2401(a) is non-jurisdictional, Brook fails to establish (a) an “extraordinary circumstance” preventing timely filing, or (b) “affirmative misconduct” by HHS. Routine status e-mails and delay, without misrepresentations, are insufficient.
Privacy Act Analysis: § 552a(g)(5) covers “any liability created under this section.” Courts routinely apply the two-year bar to § 552a(d) disclosure claims. Brook’s late-made, unpreserved argument to the contrary is waived and meritless.

C. Impact

Litigation Timing: Requesters in the Fifth Circuit must sue within six years of constructive (or actual) exhaustion, regardless of ongoing administrative dialogue. Counsel should diary 20-working-day deadlines the moment an appeal is filed.
Strategic Choice: Plaintiffs can no longer safely “wait and see” whether an agency will ultimately produce documents; doing so risks forfeiture.
Administrative Delay Tactics: Agencies cannot be estopped merely for delay absent affirmative deception. Plaintiffs may need to file “protective suits” rather than rely on goodwill communications.
Privacy Act Uniformity: The decision reinforces that § 552a(g)(5)’s two-year bar applies to all subsections, erasing any lingering uncertainty over disclosure-of-records claims.
Inter-Circuit Dialogue: While most circuits already align with Spannaus, Brook cements that approach within the Fifth Circuit and clarifies unresolved intra-circuit tensions on jurisdiction vs. claim-processing rules, albeit without definitively labeling § 2401(a) as jurisdictional.

IV. Complex Concepts Simplified

Exhaustion of Administrative Remedies: Before suing, a FOIA requester must let the agency process the request and any administrative appeal. When the agency misses the statutory deadline, exhaustion is deemed complete by law—called “constructive exhaustion.”
Constructive vs. Actual Exhaustion: “Actual” means the agency sent a final response. “Constructive” means the agency’s inaction after 20 working days (for either the initial request or appeal) legally counts as a denial. Both allow the requester to sue, but only constructive exhaustion starts without a formal decision.
Continuing-Violation/Tort Theory: Some torts or civil-rights violations recur daily (e.g., hostile work environment), resetting limitations. The court says FOIA is different: the harm is a single withholding, and the claim arises when you gain the right to sue.
Equitable Tolling vs. Equitable Estoppel: Tolling pauses the clock due to extraordinary circumstances beyond the plaintiff’s control. Estoppel prevents a defendant from asserting limitations when it misled the plaintiff. Both require more than bureaucratic delay.
Jurisdictional vs. Claim-Processing Rule: If a limitation is “jurisdictional,” courts cannot apply equitable doctrines. The Fifth Circuit leaves the status of § 2401(a) unresolved but notes that Brook would lose either way.

V. Conclusion

Brook v. Holzerland crystallises a bright-line rule within the Fifth Circuit: the moment a FOIA requester can sue—whether via agency silence or a belated partial response—the six-year clock under § 2401(a) starts and will not restart. The same rigor applies to the Privacy Act’s two-year period. By rejecting creative continuing-violation theories and demanding concrete evidence for equitable relief, the court sends a clear message: vigilance, not patience, safeguards information-access rights. Future litigants must monitor statutory deadlines assiduously or risk forfeiting their day in court.