D.D.C. Holds that Complaints May Be Dismissed for Failure to Exhaust Administrative Remedies, Even Though Such Defect Is an Affirmative Defense

Per Lykens v. U.S. Government, 523 F.Supp.2d 26 (D.D.C. Dec. 10, 2008)

Plaintiffs next contend that complaints can no longer be dismissed for failure to exhaust administrative remedies after Jones v. Bock, --- U.S. ----, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which plaintiffs characterize as foreclosing consideration of an exhaustion defect through a motion to dismiss, insofar as Jones categorizes it as an affirmative defense. Jones does contain the observation that “the usual practice under the Federal Rules [of Civil Procedure] is to regard exhaustion as an affirmative defense.” See 127 S.Ct. at 919. But Jones also recognizes that dismissal for failure to state a claim may be appropriate if the complaint somehow indicates that the defense is applicable. Id. at 921 (“[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract”). Thus, this Circuit has observed that, “even when failure to exhaust is treated as an affirmative defense, it may be invoked in a Rule 12(b)(6) motion if the complaint somehow reveals the exhaustion defense on its face.” See Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C.Cir.2007); see also Romashko v. United States, No. 05-2209, 2007 WL 2908754, at * 7 (D.D.C. Sept.30, 2007). *29 Here, plaintiffs' complaint indicated that they regarded exhaustion as futile and not applicable to their situation, thus indicating the applicability of the defense. Compl. at 4-5. In their subsequent briefs, plaintiffs did not dispute that they failed to comply with the exhaustion requirement set forth in 26 C.F.R. § 301.7433-1. Thus, resolution of the issue of failure to exhaust administrative remedies pursuant to a Rule 12(b)(6) motion to dismiss was appropriate and fully consistent with Jones v. Bock.