Bruce Fein v. Robert Peckenpaugh and Wheeling Park Commission

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

BRUCE FEIN,
Plaintiff Below, Petitioner

v.) No. 24-ICA-444 (Cir. Ct. of Ohio Cnty. Case No. CC-35-2024-C-172)
FILED
ROBERT PECKENPAUGH and
August 29, 2025
WHEELING PARK COMMISSION,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendants Below, Respondents INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Bruce Fein appeals the October 8, 2024, order from the Circuit Court of
Ohio County, which granted the motion to dismiss Mr. Fein’s complaint filed by
Respondents Robert Peckenpaugh and Wheeling Park Commission (the “Commission”).
Respondents filed a response.1 Petitioner filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This action centers on a West Virginia Freedom of Information Act (“FOIA”)
request served by petitioner upon respondents. However, because petitioner’s FOIA
request relates to events surrounding an earlier federal court action filed by another
individual, we briefly pause to discuss the facts of the federal action to add necessary
context to the present appeal.

Federal Action

On February 26, 2024, relator filed a qui tam action2 against the Commission in the
United States District Court for the Northern District of West Virginia (“Northern

1
On appeal, petitioner is self-represented. Respondents are represented by Shawn
A. Morgan, Esq., and Stephenee R. Gandee, Esq., Steptoe & Johnson PLLC.
2
“A qui tam action is one in which a private plaintiff [relator] sues on behalf of the
government under a statute that awards part of any penalty recovered to the plaintiff and
the remainder to the government.” Camden-Clark Mem’l Hosp. Corp. v. Marietta Area
1
District”), alleging violations of the federal False Claims Act. See 31 U.S.C.A. § 3729
(2009). Specifically, the alleged violations were in relation to the Commission’s
application for, and receipt of, loans under the federal Paycheck Protection Program (“PPP
Loans”). As part of its investigation, the United States Department of Justice (“DOJ”)
served a broad subpoena upon the Commission pursuant to which the Commission
produced voluminous documentation. On June 5, 2024, the Northern District entered an
order granting the DOJ discretion to disclose relator’s complaint and disclosure statement,
as well as a copy of the order authorizing disclosure to the Commission’s legal counsel.
The June 5, 2024, order also provided that the case would remain under seal pending further
order.

On July 3, 2024, DOJ notified the Northern District that it would not intervene in
the case, and on the same day, the Northern District entered an order which unsealed only
relator’s complaint and disclosure statement, and directed relator to serve the complaint
upon the Commission. The July 3, 2024, order also stated that all other contents of the case
file would remain under seal. Relator did not serve the Commission. Instead, on July 25,
2024, relator served a FOIA request upon the Commission, which requested numerous
documents related to the PPP Loans. Relator spoke with Commission’s counsel by phone
on July 30, 2024, at which time counsel informed relator that the request was improper
because it sought documentation which had been subpoenaed by DOJ and ordered sealed
by the Northern District in the qui tam action. On July 31, 2024, relator withdrew the FOIA
request.

Present Case

On August 22, 2024, petitioner served his FOIA request upon Mr. Peckenpaugh,
Commission President and CEO. The FOIA request stated:

Pursuant to the West Virginia Freedom of Information Act, I write to request
all communications with and documents furnished to the United States
Attorney’s Office for the Northern District of West Virginia or the United
States Department of Justice relating to the Wheeling Park Commission’s
application for and receipt of two loans under the Small Business
Administration Paycheck Protection Program. One loan was approved on or
about April 27, 2020 in the approximate amount of $1,977,444.50 and
forgiven on or about June 11, 2021 in the approximate amount of
$1,999,581.91. The other was approved on or about March 6, 2021 in the
approximate amount of $1,766,492.50 and forgiven on or about February 15,
2022 in the approximate amount of $1,738,092.69.

Healthcare, Inc., No. 23-569, 2025 WL 1393680, ___ W. Va. ___ n.1, ___ S.E.2d ___ n.1
(2025) (quoting Hays v. Hoffman, 325 F.3d 982, 986 n.1 (8th Cir. 2003)).

2
In an e-mail exchange on August 28, 2024, the Commission’s counsel informed
petitioner that his FOIA request was improper because it sought information which was
not public record, and the request was phrased in broad and general terms instead of
requesting specific documentation. Counsel requested that petitioner either withdraw his
FOIA request or submit a sufficiently detailed FOIA request. Petitioner responded by
stating “[y]our client provided documents to the [DOJ] about its PPP loans, and those are
the documents I seek.” Petitioner declined to withdraw his request and informed the
Commission that failure to comply with his FOIA request would result in legal action.

The Commission did not disclose the documentation and on September 6, 2024,
petitioner filed his complaint. In his complaint, petitioner asserted that respondents had
violated FOIA and sought attorney’s fees. Petitioner specifically referenced the related
Northern District action in his complaint. That same day, the Commission filed a motion
for a protective order with the Northern District to thwart petitioner’s FOIA request.
Relator did not respond to the motion. Instead, on September 18, 2024, relator filed a
motion to dismiss the qui tam complaint, and the DOJ consented to the dismissal. On
September 27, 2024, the Northern District entered an order dismissing the case; however,
that order did not lift the prior orders placing portions of the case, including the subpoenaed
documents, under seal.

On September 25, 2024, respondents filed their motion to dismiss petitioner’s
complaint. In support of their motion, respondents contended that petitioner sought
documentation which was placed under seal by the Northern District; petitioner could not
use FOIA to conduct discovery for relator’s case; the breadth of the DOJ subpoena is much
broader than a FOIA request, and simply because the Commission disclosed documents in
response to the DOJ subpoena did not make the documents subject to FOIA disclosure;
and that petitioner’s FOIA request was too broad and did not sufficiently identify the
specific documents he requested and, thus, respondents could not raise their appropriate
defenses and statutory exceptions in opposition to disclosure. Respondents’
motion further contended that petitioner had pled no set of facts to establish his entitlement
to attorney’s fees.

Petitioner filed a response opposing the motion to dismiss, contending, among other
things, that because he was not a party to the federal case, his FOIA request was not subject
to the Northern District’s seal orders, and that all of the records he sought were public
records and therefore, not subject to any FOIA exemptions.

On October 8, 2024, the circuit court entered the order granting respondents’ motion
to dismiss, finding that petitioner’s FOIA request sought documentation which was not
subject to disclosure. In its order, the circuit court concluded that because the documents
remained subject to seal orders in the Northern District, respondents were prohibited from
disclosing the information.

3
The court also found that petitioner’s FOIA request did not satisfy the requirements
of West Virginia Code § 29B-1-3(d) (2015), which requires: “All [FOIA] requests for
information must state with reasonable specificity the information sought . . . .” Here, the
circuit court determined that petitioner’s request lacked specificity both to identify “public
documents” and to identify those documents which were clearly exempt from production
or disclosure. The court also found that petitioner’s August 28, 2024, supplemental
response to the Commission’s counsel did not bring his FOIA request into statutory
compliance. In other words, the court agreed with respondents that the request was too
vague and prevented respondents from adequately determining the documents sought and
whether any FOIA exemptions applied.

As a final matter, the circuit court concluded that there was no set of facts from
which petitioner could establish that he was entitled to attorney’s fees in this case. This
appeal followed.

In this case, our standard of review is de novo. Syl. Pt. 2, State ex rel. McGraw v.
Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (“Appellate
review of a circuit court’s order granting a motion to dismiss a complaint is de novo.”).
“This Court reviews questions of law in FOIA appeals de novo.” Gray Media Grp, Inc. v.
W. Va. Dep’t of Health and Hum. Res., 250 W. Va. 345, 352, 902 S.E.2d 894, 901 (Ct.
App. 2024) (first citing Syl. Pt. 2, Tax Analysts v. Irby, 249 W. Va. 611, 900 S.E.2d 37
(2024) and then citing Charleston Gazette v. Smithers, 232 W. Va. 449, 460, 752 S.E.2d
603, 614 (2013)).

On appeal, petitioner raises several assignments of error challenging the circuit
court’s dismissal of his complaint. However, we find that we can dispose of this appeal by
addressing petitioner’s argument that the circuit court erred in relying upon extrinsic facts
in its determination that the documents he requested under FOIA remained subject to the
seal orders of the Northern District. Therefore, we will not address petitioner’s remaining
assignments of error.3

3
Among his other assignments of error, petitioner claims that the circuit court’s
order failed to define which documents were “public documents” under West Virginia
Code § 29B-1-2(5) (2021); the court erred in finding his FOIA request to be too vague; the
court erred by dismissing his claim for attorney’s fees; and that the court gave no weight
to FOIA’s declaration of public policy under West Virginia Code § 29B-1-1 (1977).
However, because we have determined that petitioner failed to establish a successful
argument challenging the circuit court’s determination on the seal orders’ applicability,
resolution of petitioner’s remaining contentions is unnecessary.

4
On this issue, petitioner argues that the circuit court erred by impermissibly relying
on respondents’ extrinsic evidence and accompanying factual allegations.4 To that end,
petitioner maintains that his complaint, when taken as true, entitles him to the relief sought
and any consideration to matters beyond his pleading short-circuits the fact-finding and
discovery process to which he is entitled. We disagree.

In evaluating a motion to dismiss, the circuit court may consider any “matters
incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, [and] items appearing in the record of the case.” Forshey v.
Jackson, 222 W. Va. 743, 749, 671 S.E.2d 748, 754 (2008). In ruling that the documents
Petitioner requested were not subject to FOIA disclosure because they are subject to the
Northern District’s seal orders, the circuit court specifically relied on the Northern
District’s July 3, 2024, order partially unsealing the case and the September 27, 2024,
dismissal order, which did not unseal any previously sealed materials. In this matter, the
circuit court’s consideration and interpretation of the Northern District’s orders were well
within its authority at the motion to dismiss stage. See Syl. Pt. 11, in part, Arnold Agency
v. W. Va. Lottery Comm’n, 206 W. Va. 583, 526 S.E.2d 814 (1999) (holding that “a court
may take judicial notice of the orders of another court pursuant to [Rule] 201”). 5 As this

4
Petitioner explicitly disclaimed reliance on this argument below. In his response
to respondents’ motion to dismiss, petitioner noted that the argument that the documents
he requested were sealed by the Northern District’s orders relied on factual matters outside
his complaint. After asserting that this would have been a reason for the circuit court to
disregard respondents’ argument, petitioner stated that he “does not ask the Court to do so,
for [respondents’] exhibits make clear that the documents have not been sealed by the
federal court.” Therefore, petitioner directly consented to the circuit court’s consideration
of the exhibits to respondents’ motion to dismiss, which he now impermissibly assigns as
error. See Syl. Pt. 1, Maples v. W. Va. Dep’t of Com., Div. of Parks & Recreation, 197 W.
Va. 318, 475 S.E.2d 410 (1996) (“A litigant may not silently acquiesce to an alleged error,
or actively contribute to such error, and then raise that error as a reason for reversal on
appeal.”).
5
The circuit court also cited to other filings from the Northern District case,
including the United States’ Notice of Consent to Dismissal as well as the docket sheet
from that action. Because the Northern District’s orders are both the basis for the circuit
court’s dispositive ruling and the apparent subject of Petitioner’s challenge, we focus our
analysis on them. However, the circuit court could also properly consider other filings and
the docket sheet from the Northern District. See Gomez v. A.C.R. Promotions, Inc., No. 17-
1048, 2019 WL 2499617, at *3 (W. Va. June 17, 2019) (memorandum decision)
(“Therefore, we conclude that the circuit court may take judicial notice of the records of
the federal district court.”); Formulak v. Bank of Charles Town, No. 15-0643, 2016 WL
2970311, at *1 (W. Va. May 20, 2016) (memorandum decision) (taking judicial notice of
5
usage of extrinsic evidence was the petitioner’s sole basis for challenging the circuit court’s
determination, we find no error in the circuit court’s finding that the orders of the Northern
District exempted the requested material from disclosure.
We note that in petitioner’s reply brief, he argues for the first time on appeal that
the Respondents failed to satisfy the burden of demonstrating that the Northern District’s
seal orders were intended to prohibit disclosure, acting as a prohibitive injunction so long
as the seal remained in effect. However, we do not consider this argument to be properly
preserved in the petitioner’s initial brief. Any nonjurisdictional issues which are raised for
the first time in the reply brief do not provide an opportunity for the other party to respond
to the issue. Consequently, we decline to address the issue in this appeal. See In re M.S.-1,
No. 17-0872, 2018 WL 1255020, at *1 n.2 (W. Va. Mar. 12, 2018) (memorandum decision)
(declining to address assignment of error first raised in reply brief); Sim Fryson Enters.,
Inc. v. Tim Short of Charleston, LLC, No. 24-ICA-106, 2025 WL 895778, at *2 n.2 (W.
Va. Ct. App. Mar. 24, 2025) (memorandum decision) (same).
For these reasons, we decline to disturb the circuit court’s October 8, 2024, order.

Accordingly, we affirm.

Affirmed.

ISSUED: August 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

docket sheet); Ballard v. Pomponio, No. 15-0738, 2016 WL 4579066, at *3 n.1 (W. Va.
Sept. 2, 2016) (memorandum decision) (recognizing that “the circuit court was able to take
judicial notice of the proceedings in the federal district court without converting
respondent’s motion to dismiss into a motion for summary judgment”).

6