Thompson v. Dep't of the Navy, No. 11-11782, 2012 WL 4464648 (11th Cir. Sept. 27, 2012) (unpublished disposition). Holding: The court affirms the district's court dismissal of plaintiff's claim for failure to exhaust administrative remedies. The court holds that the district court properly dismissed plaintiff's claim. "Under the facts alleged in [plaintiff's] complaint, he 'neither actually nor constructively exhausted his administrative remedies.'" The Defendant notified plaintiff of his right to appeal on May 5, 2008. However, the plaintiff did not appeal until April 29, 2009. The defendant responded that it declined to adjudicate plaintiff's appeal because it was untimely. Plaintiff filed a lawsuit "even though he had failed to pursue timely all administrative remedies" and here the court accordingly affirms the district court's dismissal of plaintiff's claim for failure to exhaust his administrative remedies.
Flaherty v. IRS, No. 11-5237, 2012 U.S. App. LEXIS 11436 (D.C. Cir. June 6, 2012) (per curiam).Holding: Affirming order of the district court dismissing individual defendants from the case and substituting the IRS as the proper party and its finding that plaintiff failed to exhaust his administrative remedies; and denying plaintiff's request to strike defendant's filings. The D.C. Circuit affirms the finding of the district court that plaintiff failed to exhaust his administrative remedies with respect to one of his requests. Although plaintiff alleged that he constructively exhausted his administrative remedies because the IRS did not respond to his request within twenty days, the D.C. Circuit finds that he "did not file his complaint until . . . well after the government responded to [his] FOIA request," which re-triggered the exhaustion requirement.
Hull v. IRS, No. 10-1410, 2011 WL 3835402 (10th Cir. Aug. 31, 2011) (Baldock, J.). Holding: Rejecting the district court's conclusion that it was jurisdictionally barred from deciding plaintiffs' FOIA claim on the merits; but affirming the district court's judgment in favor of the IRS on the grounds that the IRS properly invoked Exemption 3 with respect to all requested records because they pertained to a third party's return information; and concluding that the district court did not abuse its discretion in refusing to conduct an in camera review. The Tenth Circuit concludes that the district court improperly held that "Plaintiffs' failure to exhaust their administrative remedies under FOIA deprived it of subject matter jurisdiction." The court below had concluded that because tax return information is protected by 26 U.S.C. §6103 and plaintiff had not presented a waiver from the taxpayer as required by IRS regulations, the IRS had not received a perfected FOIA request and, accordingly, was unable to issue its final determination. The Tenth Circuit notes that it is "not entirely convinced of the first premise of the IRS's argument and the district court's holding – that failure to file U.S. West's authorization with their initial FOIA request amounts to failure to exhaust administrative remedies." Rather, the Tenth Circuit finds that "Plaintiffs have done all they could to challenge the IRS's adverse determination that their request seeks protected return information and to obtain a final administrative decision," which included administratively appealing the IRS's initial response. The Tenth Circuit also comments that in order "to decide whether Plaintiffs have exhausted their administrative remedies, we would have to answer the same question we would if we proceeded to the merits; has the IRS met its burden of proving all of the requested information constitutes third party return information."
However, assuming that plaintiffs' failure to file the taxpayer authorization with the request "could constitute a failure to exhaust," the Tenth Circuit comments that it "seize[s] this opportunity for clarity by joining the majority of [its] sister circuits in concluding [that] exhaustion under FOIA is a prudential consideration rather than a jurisdictional prerequisite." Moreover, the Tenth Circuit comments that "[o]ur conclusion does not alter the fact that exhaustion remains a hurdle that FOIA plaintiffs must generally clear in order to obtain relief through the courts," however, "[i]t is just not a jurisdictional hurdle." Here, the Tenth Circuit finds that "the purposes of exhaustion have been served," because the IRS "has compiled a sufficient record" and it "also asserts that it has given the courts and Plaintiffs all the benefit of its experience and expertise and provided as much of a record as it intends to give." As such, the Tenth Circuit holds that "[b]ecause exhaustion is a prudential consideration and the purposes of exhaustion have been served, we conclude that the district court should have decided Plaintiffs' FOIA claim on the merits."
Kemmerly v. Dep't of Interior, No. 10-31117, 2011 WL 2473664 (5th Cir. June 22, 2011) (per curiam). Holding: Affirming district court's decision granting the Department of the Interior's (DOI's) motion to dismiss for lack of subject matter jurisdiction for failure to exhaust administrative remedies; and remanding with instructions that the district court modify its judgment to dismiss these claims without prejudice. The Fifth Circuit affirms the decision of the district court granting defendant's motion to dismiss for lack of subject matter jurisdiction based on plaintiff's failure pay fees which is necessary to exhaust administrative remedies. The Fifth Circuit rejects plaintiff's claim that he constructively exhausted his administrative remedies "because the DOI's responses and estimates were 'not prepared in compliance with law' and were either untimely or arbitrary, capricious, excessive, and unreasonable." To the contrary, the Fifth Circuit notes that "DOI responded by providing [plaintiff] with a cost estimate and the opportunity to revise his requests" and further observes that, in fact, "DOI revised its cost estimate when [plaintiff] filed an affidavit identifying the documents he requested more specifically." Additionally, plaintiff "offers no support for his suggestion that [the Fifth Circuit] treat the DOI's response as no response at all, and [the court] decline[s] to do so." However, the Fifth Circuit comments that plaintiff "is, of course, free to file another complaint after he exhausts his administrative remedies" and remands the matter to the district court to modify its judgment to dismiss the claims without prejudice.
Thompson v. U.S. Marine Corp, No. 09-16523, 2010 WL 3860578 (11th Cir. Oct. 5, 2010) (per curiam) . The court affirms the district court's order denying plaintiff's motion to reopen his previously dismissed FOIA case. The court concludes that the district court properly dismissed the action as "[u]nder the facts alleged in [plaintiff's] complaint, he 'neither actually nor constructively exhausted his administrative remedies.'" However, the court notes that "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 [because] [e]xhaustion of administrative remedies is not a jurisdictional requirement, but 'performs a function similar to the judicial doctrine of ripeness by postponing judicial review.'"
Reynolds v. Att'y Gen. of the United States, No. 09-3675, 2010 WL 3370280 (2d Cir. Aug. 26, 2010) (unpublished disposition). The court determines, that based on its conclusion with respect to the fee waiver request, plaintiff failed to exhaust his administrative remedies because "he has not yet paid the required fees or narrowed his request to the first two-hours of searching and the first 100 pages of records, which the DOJ's regulations would allow him to receive for free." The court also comments that plaintiff's "argument about the adequacy of the search is also unexhausted because there is no basis in the record upon which any court could evaluate the search at this time."
Allen v. EEOC, No. 09-14640, 2010 WL 653329 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished disposition). The district court correctly ruled that plaintiff had failed to show that he exhausted his administrative remedies because he did not establish that he filed an administrative appeal of the EEOC's initial response to his request.
Moore v. Obama, No. 09-5072, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009) (unpublished disposition) (per curiam). "It is undisputed that appellant failed to exhaust his administrative remedies regarding his requests for documents . . ., and the district court correctly held that appellant was required to exhaust administrative remedies before filing suit under the Freedom of Information Act."
Wadhwa v. VA, No. 09-1835, 2009 WL 2606661 (3d Cir. Aug. 26, 2009) (unpublished disposition) (per curiam). "Under FOIA's constructive exhaustion provision, [plaintiff] was not required to exhaust his administrative remedies if he did not receive a response to his FOIA request before filing suit. Although the VA established that it had in fact responded to [plaintiff's] FOIA request, [plaintiff] did not receive the response."
Neyrges v. FAA, No. 09-50246, 2009 WL 2482065 (5th Cir. Aug. 14, 2009) (unpublished disposition) (per curiam). By failing to appeal from an FAA determination letter (which advised plaintiff of his right to file an appeal with the FAA Administrator), plaintiff failed to exhaust his administrative remedies. The court does not accept plaintiff's contention that the determination letter was the "final ruling" by the FAA, given that it clearly gave appeal rights to plaintiff.
Pickering-George v. DEA, No. 08-5227, 2009 U.S. App. LEXIS 12064 (D.C. Cir. June 3, 2009) (unpublished disposition) (summary order). The district court properly ruled that plaintiff was required to exhaust his administrative remedies before filing suit, and that plaintiff did not provide any grounds for the court to reject the DEA declarant's assertion that it had no record of having received a FOIA request from plaintiff.
District Court DecisionsGonzales and Gonzales Bonds and Ins. Agency, Inc. v. DHS, No.C 11-02267 DMR, 2012 WL 6680228 (N.D. Cal. Dec. 21, 2012) (Ryu, Magistrate J.).Holding: Granting plaintiff's motion for summary judgment in part with respect to its challenge to the Consent Provision in DHS's FOIA regulations, but dismissing plaintiff's claim under the APA. The court finds that the Consent Provision at issue in this case "violates FOIA." This Consent Provision requires a requester to provide written authorization or proof of death in order to obtain records on a third party. The court finds: "If an individual does not comply with the provision, DHS terminates the FOIA process before it has begun, under the guise of applying a procedural regulation which implements FOIA's privacy exemptions. If the requester appeals that decision, DHS can do what it did in this case: file a motion to dismiss the case, alleging that the requester failed to exhaust its administrative remedies. In this manner, the agency obviates the requester's right to judicial review of the agency's application of the privacy exemptions, casting off its legal burden to demonstrate the propriety of its withholdings."
Sieverding v. DOJ, No. 11-1032 (JDB), 2012 WL 6608573 (D.D.C. Dec. 19, 2012) (Bates, J.).Holding: Granting defendant's motion to dismiss all FOIA claims.The court holds that all of plaintiff's "FOIA claims warrant dismissal because she has either failed to administratively exhaust them or they are moot." Plaintiff either failed to appeal the defendant's response to her FOIA request to the Office of Information Policy (OIP) or she "filed her case in this Court around the time she appealed to OIP." The court explains: "OIP never had an opportunity to respond or redress any grievances raised by [plaintiff's] appeal before she raised the same claims before this Court." The court explains that allowing plaintiff "to pursue her claim…in federal litigation would undermine DOJ's process for resolving such FOIA claims."
The court rejects plaintiff's assertion that search fees are not permitted for these requests under the Privacy Act. The defendant "concluded that the records [plaintiff] sought were exempted from release under the Privacy Act…; but it also proceeded to process her requests under FOIA, which allows for search fees to be assessed." "It is undisputed that [plaintiff] had notice of the search and duplication fees, and that she received communication stating that such fees were owed." The requests were closed because the plaintiff "failed to pay the requisite search fees." The plaintiff did not seek a fee waiver, appeal the fee response, or take "any other action with respect to those fees." The court finds that the claims related to these requests as also dismissed for failure to exhaust.
Walsh v. FBI, No. 11-2214, 2012 WL 5873671 (D.D.C. Nov. 21, 2012) (Roberts, J.).Holding: Granting the VA's and ODNI's motions for summary judgment; dismissing claims against the Foreign Intelligence Surveillance Court (FISC) because it is not subject to the FOIA; denying FBI's motion for summary judgment. The court finds that the requester has not exhausted his administrative remedies with regard to his claims against the VA and ODNI. He "submitted no proof that he mailed this request, or that the VA received it. The VA has presented undisputed evidence that it searched for [the requester's] FOIA request in the places that [his] FOIA request to the VA would have been located, but did not discover any such request. Thus, either [the requester] never properly initiated and exhausted the FOIA administrative process, or if he did send a valid request, the VA has shown that it does not have the request and the request was not exhausted." The court accordingly grants judgment for the VA. Similarly, the court examines ODNI's undisputed assertions and determines that "ODNI conducted a search reasonably calculated to locate [the requester's] alleged FOIA request and did not discover any such request." Accordingly, the court also grants summary judgment in favor of ODNI.
However, the court denies the FBI's motion for summary judgment. The FBI asserted that it sent the requester a letter dated October 12, 2011, advising him that it needed more information to conduct a search for records regarding him and that his request would be closed if the FBI did not receive a response in 30 days. This letter also informed him of his right to appeal. The FBI argued that the requester never responded and never appealed. The requester argued that he never received this letter. With respect to his request for records concerning the agents in charge of the Harrisburg Resident Agency, the FBI asserted that the requester never appealed its denial of his request under Exemptions 6 and 7(C). The FBI stated that it contacted OIP on January 24, 2012 to confirm that the requester had not appealed. However, the court finds that "the FBI does not provide factual detail to show that it searches for [the requester's] responses were reasonably calculated to find his response, nor does the FBI provide any evidence, such as a return receipt, that would resolve the factual dispute about whether it mailed [the requester] the October 12 letter."
Dennis v. CIA, Nos. 12 CV 4207(JG), 12 CV 4208(JG), 12 CV 5334(JC), 2012 WL 5493377 (E.D.N.Y. Nov. 13, 2012) (Gleeson, J.).Holding: Consolidating plaintiff's three complaints and dismissing all for failure to state a claim.The court dismisses the plaintiff's claims without prejudice, explaining that "an interim response informing the plaintiff that the agency is in the process of addressing her inquiry is sufficient to satisfy the requirement that the agency reply within the statutory time period." Because the CIA and DEA "indicate that [plaintiff's] administrative appeals are being processed," her constructive exhaustion argument fails. Additionally, the plaintiff only recently complied with the request from DHS for "further identifying information." The court concludes "it is clear that [plaintiff] failed to exhaust her administrative remedies prior to initiating the instant actions."
Freedom Watch, Inc. v. CIA, No. 12-0721, 2012 WL 4753281 (D.D.C. Oct. 5, 2012) (Huvelle, J.).Holding: Granting defendants' motion to dismiss. The court dismisses plaintiff's complaint for failure to exhaust administrative remedies. Noting that plaintiff did "not deny that it did not seek appeal of [the defendant agencies'] decisions," the court rejects plaintiff's request that the court adopt a futility exception to the exhaustion requirement. The court notes that "binding Circuit precedent could not be clearer: exhaustion of administrative remedies 'is a mandatory prerequisite to a lawsuit under FOIA.'" The court finds that the "defendants responded to [plaintiff's] requests with detailed explanations of why, pursuant to agency determinations, and in light of the nature of [plaintiff's] requests, they were denying them." The court holds that these responses [i.e. that the defendants could not confirm or deny the existence of certain records and that the request was not reasonably described] "give no grounds for arguing that exhaustion of administrative remedies would be futile."
ACLU of Mich. v. FBI, No. 11-13154, 2012 WL 4513626 (E.D. Mich. Sept. 30, 2012). Holding: Granting defendant's motion for summary judgment and denying plaintiff's motion. The court declines to adjudicate plaintiff's claim with regard to the adequacy of the FBI's search for responsive records. The court comments that "nowhere in the Appeal does Plaintiff question or challenge the adequacy of Defendant's search." Accordingly, the court finds that it does not have subject matter jurisdiction over this portion of the complaint because plaintiff "could not have administratively exhausted this claim."
Degenes v. FBI, No. 11-916, 2012 U.S. Dist. Lexis 139307 (W.D. Pa. Sept. 27, 2012) (Conti, J.). Holding: Dismissing the complaint for lack of subject-matter jurisdiction. The court dismisses the complaint for lack of subject-matter jurisdiction, concluding "[p]laintiff's failure to exhaust the administrative remedies provided by the FOIA precludes this court from exercising jurisdiction in this case." "The FOIA is clearly an instance where Congress has intended to impose an exhaustion requirement not subject to the discretion of the courts."
Wells v. VA, No. 11-9-BAJ-SCR, 2012 U.S. Dist. LEXIS 131707 (M.D. La. Sept. 14, 2012) (Jackson, J.). Holding: Granting defendant's Rule 12(b)(6) motion to dismiss. The court dismisses plaintiff's suit because "[p]laintiff has neither alleged nor demonstrated that he has made a request to the VA for reasonably described records; nor that he has appealed a denial of such a request to the VA Office of the General Counsel. It is well established that a claimant must exhaust his administrative remedies prior to requesting judicial relief under the FOIA."
Toensing v. DOJ, No. 11-1215, 2012 WL 4026099 (D.D.C. Sept. 13, 2012) (Howell, J.). Holding: Granting defendant's motion for summary judgment in part. The court finds that plaintiffs have failed to exhaust their administrative remedies and dismisses their claims regarding the propriety of the exemptions invoked by the defendant. The court holds that "[f]or the administrative exhaustion requirements to serve any meaningful purpose, duplicative requests filed by the same individuals for the same information cannot cure all unexhausted prior requests." Here, the court holds that "where a FOIA requester fails to exhaust her administrative remedies in connection with an initial request, but then files a subsequent, identical request for which the requester does exhaust her administrative remedies (either constructively or through an administrative appeal), the requester may only obtain judicial review of issues related to the initial, unexhausted request insofar as the agency elected to review those particular issues through an administrative appeal on the merits in connection with the subsequent, identical exhausted request." In this instance, OIP did review the adequacy of the searches performed because plaintiffs appealed the search to OIP when they submitted new requests in an attempt to cure the procedural defects in their 2007 and 2008 requests. However, the plaintiffs "never identified the defendant's [initial] withholding decisions as a basis for their appeals." As a result, the plaintiff's claims relating to the withholdings made in 2007 and 2008 are dismissed suasponte by the court.
Perez-Rodriguez v. DOJ, No. 11-0556, 2012 WL 3764763 (D.D.C. Aug. 31, 2012)
(Bates, J.).Holding: Granting motion for summary judgment in favor of defendants EOUSA and SSA because plaintiff failed to exhaust his administrative remedies before filing suit; denying defendant ICE's motion for partial summary judgment because ICE's searches for responsive records were not reasonable under the circumstances. The court rejects plaintiff's argument that he had constructively exhausted his administrative remedies because EOUSA and SSA failed to respond within the 20-working day period. The court notes that EOUSA did respond within the 20-working day period, however, even had EOUSA's response been untimely, "'this so-called constructive exhaustion ceases to offer a basis for judicial action once an agency actually responds.'" Since "[p]laintiff did not pursue an administrative appeal of the EOUSA's initial determination …he did not exhaust his administrative remedies prior to filing this lawsuit." The court also finds that the plaintiff failed to exhaust his administrative remedies with regard to the SSA response. The court points out that the "the flaw in plaintiff's argument is that the 20-day clock does not begin to run 'until [the agency] has received a proper FOIA request in compliance with its published regulations.'" The SSA "requested clarification of the nature and purpose of plaintiff's FOIA request, and plaintiff declined to provide one."
Judicial Watch, Inc. v. U.S. Dep't of Energy, No. 11-2140, 2012 WL 3781865
(D.D.C. Aug. 31, 2012) (Contreras, J.). Holding: Denying defendant's motion for judgment on the pleadings without prejudice and directing parties to refile their pleadings with additional briefing concerning the issue of whether the failure to include a notice of right to appeal makes a response letter inadequate to trigger the requirement to file an administrative appeal.The court notes that "if an agency sends the requestor a response after the twenty-day period, but before the requestor files suit, constructive exhaustion does not apply and the plaintiff must still actually exhaust its administrative remedies before bringing an action in court." However, the court determines that the parties did not adequately brief the issue of whether the defendant's "failure to include a notice of the right to appeal makes the [defendant's response] letter inadequate to trigger the plaintiff's requirement to file an administrative appeal."
Bonilla v. DOJ, No. 11-20450, 2012 WL 3759024 (S.D. Fla. Aug. 29, 2012) (Cooke,
J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly withheld information under Exemptions 6 and 7(C) and that plaintiff failed to exhaust his administrative remedies. The court rejects the plaintiff's arguments regarding the timeliness of his appeal. The court finds that the plaintiff's first argument, that "the sixty-day deadline to file an appeal excludes weekends and holidays," is not persuasive because "the regulation's sixty-day filing requirement is not ambiguous." The court goes on to state that "[t]he use of the words 'days,' without a qualifier suggests the regulation refers to calendar days." Because the regulatory language is not ambiguous, the "agency's construction of its own regulations is entitled to substantial deference." The court find that even if it had determined that the language was ambiguous, "the result would be the same" because the agency's "plain and reasonable interpretation of the sixty-day deadline… is not plainly erroneous or inconsistent with the regulation, and therefore it is entitled to substantial deference." The court also refuses to excuse the FOIA's exhaustion requirement because "[p]laintiff does not point… to any legal authority to support a finding that this administrative remedy may be excused under the facts of this case… nor has [plaintiff] adequately demonstrated that administrative review would be futile."
Bransgaard v. U.S.BOP Health Serv. Staff, No. 11-3122, 2012 WL 3732822 (E.D.
N.C. Aug. 28, 2012) (Flanagan, J.).Holding: Granting defendant's motion to dismiss. The court finds that the plaintiff has not "provided the court with the information necessary to pursue a claim under the [FOIA]" where the "plaintiff has failed to show" he filed an administrative appeal and that "any information was improperly denied."
Moore v. FBI, No. 11-1067, 2012 WL 3264566 (D.D.C. Aug.13, 2012) (Kollar-Kotelly, J.). Holding: Dismissing complaint against the Executive Office of the President under Federal Rule of Civil Procedure 12(b)(6); granting, as conceded, the Criminal Division and U.S. Parole Commission's motions for summary judgment; and granting FBI and CIA's motions for summary judgment based on the adequacy of their searches and the CIA's assertion of the Glomar response in conjunction with Exemptions 1 and 3; and granting BOP and EOUSA's motions for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies. The court concludes that plaintiff failed to exhaust his administrative remedies with respect to his requests to BOP and EOUSA where he did not indicate a willingness to pay assessed fees or agree to modify his request to reduce the fees. The court finds that, in both instances, "the Court has no role to play" because plaintiff's requests have not been processed and, consequently, there has been no improper withholding of records. With respect to plaintiff's request to BOP, the court notes that "[n]ow that plaintiff has indicated his willingness to pay the assessed fees [in the course of this litigation], the Court will assume that BOP will process [his] request in a timely manner without court supervision."
Jean-Pierre v. BOP, No. 12-78, 2012 WL 3065377 (D.D.C. July 30, 2012) (Huvelle, J.). Holding: Granting BOP's motion to dismiss on grounds that plaintiff failed to state a claim where he did not comply with agency regulations, submit a reasonably described request, and failed to exhaust his administrative remedies. In addition to other grounds for dismissal, the court finds that plaintiff's complaint must also be dismissed for failure to exhaust his administrative remedies where "[h]e neither appealed the BOP's December 15 determination that his request was not cognizable under the FOIA, nor resubmitted his request, although he was advised multiple times of his right to appeal an adverse decision and provided information about how to do so." Moreover, the court rejects plaintiff's argument that "administrative remedies were 'unavailable' because he had already made an appeal to the 'highest FOIA division.'" Rather, the court finds that plaintiff's first administrative appeal was premature and notes that he was advised of "his right to appeal once an adverse determination had actually been made."
Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). In response to defendant's exhaustion argument, the court finds that, under the DOJ's regulations which establish that requesters will not be charged for amounts under $14.00, "plaintiff did not owe defendant any fees at the commencement of this lawsuit" where his fees were under that threshold. Furthermore, the court determines that plaintiff's "non-payment following defendant's second release years into the litigation did not strip this court of subject matter jurisdiction, because the purposes of exhaustion were met and [the] particular administrative scheme was satisfied at the time plaintiff filed his complaint." As side issue, the court rejects plaintiff's contention that "he constructively exhausted his [administrative] remedies upon defendant's failure to release information in a timely fashion." Rather, the court notes that FOIA plaintiffs are required to exhaust administrative remedies where the agency responds to the FOIA request before litigation commences.
The court then determines that a FOIA plaintiff's failure to pay fees does not present a jurisdictional bar to judicial review. The court finds that, in this case, "plaintiff's non-payment of past fees does not thwart the purposes of exhaustion" set forth by the Supreme Court in Weinberger v. Salfiby "'preventing premature interferences with agency processes, . . . affording the parties and the courts the benefit of the agency's experience and expertise, [and] compiling a record which is adequate for judicial review.'" The court finds that "[t]his lawsuit was not a premature interference with agency processes," and "[i]n fact, it prodded the DOJ into making the appropriately extensive searches that it did not conduct prior to this suit being filed." Additionally, the court determines that here "the parties and the court have been afforded the agency's experience and expertise," noting that "[a]t no time has defendant contended that plaintiff's non-payment has been an impediment to its ability to provide its expertise in this matter." Lastly, the court finds that "plaintiff's non-payment did not preclude the compilation of an adequate record for the Court's review." The court notes that "[d]efendant provided responsive documents on two separate occasions without plaintiff's payment and continued to supplement the record regarding the FOIA exemptions it invoked throughout the litigation."
Brodzki v. United States, No. 12-898, 2012 U.S. Dist. LEXIS 78244 (D.D.C. June 5, 2012) (Roberts,J.). Holding: Dismissing plaintiff's FOIA claim on the basis that he did not exhaust his administrative remedies where he failed to allege that he requested records from an agency under the FOIA and was denied.
Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 1815632 (N.D. Cal. May 17, 2012) (Ryu, Mag.). Holding: Declining to dismiss plaintiff's challenge to DHS's third-party consent requirements in its FOIA regulations on exhaustion grounds; dismissing, with prejudice, plaintiff's facial challenge brought under the Administrative Procedure Act (APA) to DHS's regulations because the claim falls outside the statute of limitations; and denying DHS's motion to dismiss plaintiff's "as-applied" challenge also brought under the APA to the agency's consent requirements. The court declines to dismiss plaintiff's challenge to the third-party consent requirements in DHS's regulations on exhaustion grounds. Noting that an exhaustion requirement would allow plaintiff to "bring suit only after failing to comply with the contested regulation," the court finds that "courts will not apply the administrative exhaustion doctrine in such circumstances, because the party's claim rests upon statutory interpretation – an area of the court, rather than agency, expertise."
Missud v. SEC,No. 12-161, 2012 WL 1225858 (N.D. Cal. Apr.11, 2012) (Ryu,Mag.). Holding: Granting SEC's motion to dismiss for lack of subject matter jurisdiction where plaintiff failed to exhaust his administrative remedies. The court concludes that plaintiff failed to exhaust his administrative remedies where he filed this instant suit before the twenty-day statutory response time under 5 U.S.C. §552(a)(6)(A) had passed. Additionally, the court finds that "[p]laintiff makes no showing that following administrative procedures would have been futile . . . or would have fallen into any other recognized exception to the exhaustion doctrine, which otherwise might warrant the court's exercising jurisdiction over his claim." The court also denies plaintiff leave to amend his complaint on this issue because such an amendment "would be futile."
People for the Ethical Treatment of Animals v. NIH, No. 10-1818, 2012 WL 1185730 (D.D.C. Apr.10, 2012) (Jackson,J.). Holding: Dismissing, without prejudice, and treating as conceded plaintiff's claim concerning NIH's decision to withhold certain records in response to one of its requests and its Administrative Procedure Act claim where plaintiff did not respond to defendant's arguments with respect to those issues; denying defendant's motion to dismiss the remaining FOIA claim on exhaustion grounds where NIH adjudicated plaintiff's administrative appeal despite its untimeliness; and granting defendant's motion for summary judgment on the grounds that it properly invoked the Glomar response in conjunction with Exemption 7(C). The court determines that plaintiff's failure to timely administratively appeal one of its requests does not bar the court's consideration of its claim where NIH chose to provide a substantive response to that appeal. The court concludes that it "will review [plaintiff's] Second Request because there are no prudential considerations that would militate in favor of dismissal."
Rodriguez-Cervantes v. HHS, No. 11-1387, 2012 WL 1142552 (D.D.C. Apr.6, 2012) (Boasberg,J.). Holding: Granting SSA's motion for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies where he did not submit a FOIA request to the agency, but merely requested documents in the course of this litigation. The court grants defendants' motion for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies where he did not submit a FOIA request, but merely initiated the instant action. Reviewing plaintiff's correspondence with the agency, the court concludes that plaintiff's letter to SSA asking if "'there is any way/application to get [his] social security benefits before the age established by [SSA] policies'" does not constitute a reasonably described request for agency records under the FOIA because it "contains no explicit or even implicit request for the production of any records." Similarly, the court determines that "neither of Plaintiff's two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records," but rather notes that this correspondence "merely pose[s] questions to SSA or ask[s] for assistance in applying for social security benefits." Further, the court notes that plaintiff himself "admits that he has no FOIA request before SSA."
Tereshchuk v. BOP, No. 09-1911, 2012 U.S. Dist. LEXIS 44456 (D.D.C. Mar.31, 2012) (Roberts,J.). Holding: Granting, in part, BOP's motion to dismiss with respect to two requests for which plaintiff failed to his exhaust administrative remedies, but denying BOP's motion to dismiss with respect to one request for which plaintiff did exhaust; denying plaintiff's motion for leave to file a supplemental complaint under Federal Rule of Civil Procedure 15(b)(2) as premature on the basis that no trial of this matter has begun and his proposed pleadings fail to state a facially plausible claim. The court concludes that plaintiff constructively exhausted his administrative remedies with respect to one request where he "filed this civil action . . . after the twenty-day deadline but before BOP's letter" assessing fees. The court notes that "BOP's belated fee letter does not restart the exhaustion clock" with respect to that request. However, the court finds that plaintiff failed to exhaust his administrative remedies as to two other requests where his "proposed pleading neither alleges nor proffers that he has paid the requisite fees or sought a fee waiver."
Gov't Accountability Project v. DOJ, No. 11-342, 2012 WL 1038616 (D.D.C. Mar.29, 2012) (Bates,J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to one request, DOJ conducted adequate searches for responsive records, and properly invoked the deliberative process and attorney work-product privileges to withhold certain information; and denying plaintiff's cross-motion for summary judgment and its requests for discovery and in camera review. The court concludes that plaintiff failed to exhaust its administrative remedies where it informally discussed the request with the Criminal Division's FOIA Public Liaison, but did not submit an administrative appeal. The court finds that "[e]ven though [plaintiff] claims that its informal communications should be considered a 'request to perform a better search' or alternatively, 'an administrative appeal,' [plaintiff] does not seriously contest that it failed to comply with DOJ's published regulations governing administrative appeals for FOIA requests."
Union Leader Corp. v. DHS, No. 12-18, 2012 U.S. Dist. LEXIS 39730 (D.N.H. Mar.23, 2012) (Laplante,J.). Holding: Granting, without prejudice, defendant's motion to dismiss on the basis that plaintiff fails to state a claim upon which relief may be granted where it failed to exhaust its administrative remedies; denying plaintiff's motion to amend its complaint; and denying plaintiff's motion for a preliminary injunction and request for an expedited hearing as moot. The court grants defendant's motion to dismiss, without prejudice, on the basis that the complaint failed to state a claim upon which relief may be granted where plaintiff failed to exhaust its administrative remedies by not complying with the Immigration and Customs Enforcement's (ICE's) FOIA regulations. The court finds that, rather than submitting the request to one of the offices designated to accept FOIA requests as set forth in ICE's regulations, plaintiff "requested the information in question from an ICE Public Affairs Officer, first via e-mail, then by letter."
DeBrew v. Atwood, No. 10-650, 2012 WL 898786 (D.D.C. Mar.19, 2012) (Bates,J.). Holding: Granting, in part, BOP's motion for summary judgment on plaintiff's FOIA claims on the basis that it conducted an adequate search for certain telephone records and that plaintiff failed to exhaust his administrative remedies with respect to three separate requests; and denying, in part, BOP's motion for summary judgment with regard to its interpretation of and adequacy of its search in connection with plaintiff's request for information about "Code 408." Exhaustion of administrative remedies: The court holds that plaintiff failed to exhaust his administrative remedies with respect to his request for the "DNA Act" where he failed to respond to BOP's determination letter requesting additional information. The court concludes that plaintiff's "unsupported assertions" that "had he received [BOP's] response, he would have clarified or narrowed his request" "do not overcome the BOP's showing on summary judgment." The court also concludes that plaintiff failed to exhaust his administrative remedies with respect to his requests for an "administrative remedy index," financial reports for a trust fund, and a public law. The court finds that his request which was sent directly to the BOP facility's warden "does not comply with BOP's regulations, and hence it is not a proper request." The court also determines that "[a]lthough plaintiff may have directed the other requests properly to [BOP's] Central Office, he does not show that the Central Office actually received them." The court notes that "'[w]ithout any showing that the agency received the request, the agency has no obligation to respond to it.'"
Leonard v. U.S. Dep't of Treasury, No. 10-6625, 2012 WL 813837 (D.N.J. Mar.9, 2012) (Kugler,J.). Holding: Denying the parties motions for summary judgment without prejudice; and ordering defendant to submit, for in camera review, a Vaughn index and any responsive records, and to provide plaintiff with an opportunity to reformulate his generalized request. Although the court finds that plaintiff's broad request, which "essentially request[ed] any materials, bearing Plaintiff's name or social security number, places an unreasonable burden upon the IRS," it cannot be dismissed on the basis that he failed to exhaust his administrative remedies. The court notes that "[f]ederal regulations require that, where a requester improperly describes the records being sought, 'the requester shall be afforded an opportunity to refine the request.'" Here, the court finds "not only has Plaintiff not been offered an opportunity to refine his request, but he also never received a response of any kind from Defendant to his General Request because his request was inadvertently improperly processed" as a duplicate request. The court concludes that "[a]s required by statute, Defendant must respond to Plaintiff's General Request, and offer Plaintiff an opportunity to refine his request such that it reasonably describes the information being sought."
Hall & Assocs. v. EPA, No. 10-1940, 2012 WL 718504 (D.D.C. Mar. 7, 2012) (Lamberth,J.). Holding: Granting plaintiff's cross-motion for summary judgment as to the issue of certain fees assessed by EPA; enjoining EPA from charging fees for work that was completed after the administrative appeals stage; ordering EPA to produce certain records withheld pursuant to Exemption 5; granting EPA's motion for summary judgment as to the adequacy of its search, and certain withholdings under Exemption 5; and denying plaintiff's motion for in camera review. On an issue not yet addressed by the D.C.Circuit, the district court holds that EPA improperly required plaintiff to pay or provide an assurance to pay review and duplication fees, which were incurred after EPA's administrative appeals authority ordered additional processing in connection with the request. The court rejects EPA's argument that its request for payment of fees following the administrative appeal authority's decision requiring additional review and redaction "falls within the definition of 'initial review' as contemplated by FOIA and EPA regulations," which provide that commercial use requesters "'will be charged only for the initial record review.'" The court finds that "when the Agency's FOIA response is deemed inadequate on appeal, the Agency cannot make its production of the originally improperly withheld documents contingent upon further payment from the requester under the theory that the work done in an effort to cure its initial inadequate response is still part of the 'initial review.'" Additionally, the court determines that plaintiff was not required to administratively appeal EPA's fee determinations made after the appeals determination where the agency "never informed [plaintiff] that it had made an adverse determination on this fee issue," as required by its regulations. Accordingly, the court "grants [plaintiff's] cross-motion for summary judgment on this issue, enjoining EPA from charging [plaintiff] for work that should have properly been completed during the initial FOIA review, enjoining EPA from withholding all records or portions thereof that were directed to be released by EPA's appeal determination, and ordering their immediate disclosure to [plaintiff]."
Bd. of Supervisors of Prince William Cnty. v. DHS, No. 11-819, 2012 U.S. Dist. LEXIS 27331 (E.D. Va. Mar.1, 2012) (Cacheris, J.). Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to its requests. The court concludes that plaintiff failed to exhaust its administrative remedies with respect to its requests to ICE and CIS. As to its request to ICE, the court finds that one of ICE's responses, which informed plaintiff that records responsive to two items enumerated in its request "had been located, stated the reason for the redactions in the attached spreadsheet, and notified [plaintiff] of its right to appeal," "was clearly a 'determination' which [plaintiff] was obligated to administratively appeal" The court determines that because "ICE properly responded to [two] items of [plaintiff's] request before the filing of this suit, . . . [plaintiff] is not entitled to constructive exhaustion as to this portion of its claim." Moreover, the court notes that "it is by no means clear that ICE's [earlier] response was inadequate" where it "fell within FOIA's twenty-day timeframe, and indicated that ICE had received the FOIA request and intended to process it." Quoting a recent decision by another district court, the court reiterates that "'in the event the agency intends to produce documents in response to the request, the agency need only (1) notify the requesting party within twenty days that the agency intends to comply; and (2) produce the documents promptly.'" The court further comments that plaintiff's "'disappointment in the quality of the records provided does not dispense with the administrative appeal requirement of the FOIA.'"
Additionally, with respect to CIS, the court finds that plaintiff's "FOIA claim [is] administratively barred as it relates to [the remaining] item . . . of the FOIA request" because plaintiff failed to respond to CIS's request for additional information. Here, CIS required plaintiff to provide "written consent and verifications of identity for the individuals whose records were being sought . . . as well as each subject's alien number, name, date of birth, and country of birth" in compliance with DHS's regulations. The court finds that the relevant portion of plaintiff's "request was facially deficient because it sought records concerning other individuals, but [plaintiff] failed to obtain written consent as required by DHS regulations." With regard to plaintiff's challenge to "the lawfulness of DHS's consent requirement, and [its argument] that prudential considerations therefore weigh against exhaustion," the court finds that although "[s]uch a challenge turns on statutory interpretation, which does lie in the judiciary's area of expertise," plaintiff's "failure to obtain consent is not the only ground on which CIS deemed the FOIA request defective." The court finds that whether CIS's "request for additional information was reasonable is a question that is fact-based and agency-specific" and "[i]t is therefore appropriate to require [plaintiff] to seek further administrative review before pursuing judicial intervention." The court also finds that CIS was not required in its response to inform plaintiff of the right to administrative appeal its determination because "CIS directed [plaintiff] to perfect its FOIA request and asked for names and alien numbers because it found that the request did not reasonably describe the records being sought."
Beattie v. Astrue, No. 01-2493, 2012 WL 628346 (D.D.C. Feb.28, 2012) (Roberts,J.). Holding: Dismissing plaintiff's second amended complaint, which includes his FOIA claim, for failure to state a claim upon which relief may be granted. The court concludes that plaintiff failed to exhaust his administrative remedies where "he submitted only a premature FOIA appeal, rather than an initial FOIA request, to the SSA." However, the court finds that "[e]ven if [plaintiff] can be considered to have satisfied the exhaustion requirements, 'a plaintiff pursuing an action under FOIA must establish that the agency has improperly claimed an exemption as a matter of law or that the agency failed to segregate and disclose all non-exempt information in the requested documents.'" Here, the court determines that plaintiff "has not specified any FOIA exemption or identified information the agency failed to segregate and disclose."
Nance v. FBI, No. 08-1643, 2012 WL 628370 (D.D.C. Feb.28, 2012) (Roberts,J.). Holding: Dismissing plaintiff's claims to the extent that he failed to demonstrate the he exhausted his administrative remedies with respect to certain requests; and granting the FBI's motion for summary judgment on the grounds that it conducted an adequate search for responsive records. The court concludes that plaintiff "has not denied that he failed to exhaust his administrative remedies with respect to his FOIA requests other than [one particular] request number . . . , and thus he has conceded that issue."
Pellegrino v. U.S. Transp. Sec. Admin., No. 09-5505, 2012 WL 661773 (E.D. Pa. Feb.28, 2012) (Joyner,J.). Holding: Concluding that plaintiff constructively exhausted her administrative remedies where there was a "substantial delay" on the part of the agency in releasing records; and ordering defendant to provide a Vaughn Index.
Cunningham v. Holder, No. 10-1860, 2012 WL 414685 (D.D.C. Feb.10, 2012) (Boasberg,J.). Holding: Dismissing a federal employee and the United States as parties to the action and substituting DOJ as the proper party defendant; granting EOUSA's motion for summary judgment on the basis that it conducted an adequate search and supported its claims of withholdings under Exemption 3, and concluding plaintiff failed to exhaust his administrative remedies for public records. The court finds that plaintiff failed to exhaust his administrative remedies with respect to public records related to his criminal conviction where he did not submit a specific request to EOUSA seeking those records and did not pay any associated copying fees. For one, the court finds that "EOUSA's request that Plaintiff submit a separate specific request for the public records is consistent with FOIA's requirements." The court comments that "[t]he requirement of a specific request for public records... makes sense" in light of the "FOIA's statutory requirement that agencies 'make records promptly available,'... because, unlike non-public records, public records can generally be released more quickly without any need to process them for redactions." The court concludes that "[p]laintiff here failed to pay the required copying fees, failed to request a waiver of those fees, and failed to raise this issue in his [administrative] appeal... , and failed to submit a specific request for public records as required by EOUSA."
Gonzales & Gonzales Bonds & Ins. Agency Inc. v. DHS, No. 11-2267, 2012 WL 424852 (N.D. Cal. Feb.9, 2012) (Ryu, Mag.). Holding: Granting defendant's motion to dismiss the complaint, and granting plaintiff leave to file an amended complaint. The court dismisses plaintiff's complaint with leave to amend where "Plaintiff has not sufficiently articulated" its claim regarding the lawfulness of DHS's regulation that requires requesters making FOIA requests for third party records to submit that party's written consent, and where "the complaint presents no other cause of action that would exempt it from complying with DHS's consent procedures." The court notes that it "will not apply the administrative exhaustion doctrine [based on plaintiff's failure to comply with DHS's regulations], because the party's claim rests upon statutory interpretation."
The court also elects to address DHS's exhaustion argument, holding that because "DHS has responded to only one appeal in writing and has issued no decisions on any of" plaintiff's other 183 administrative appeals, "further appeals would be futile."
Skybridge Spectrum Found. v. FCC, No. 10-1496, 2012 WL 336160 (D.D.C. Feb. 2, 2012) (Kollar-Kotelly,J.). Holding: Granting FCC's motion for summary judgment on the basis that plaintiff conceded the merits of the FCC's withholding decisions; but also concluding that, on the merits, the FCC's withholdings under Exemptions 4 and 6 were appropriate and that it properly released all reasonably segregable information. The court concludes that the doctrine of exhaustion does not preclude plaintiff from raising certain arguments before the court, which the FCC contends were not raised at the administrative appeal stage. The court finds that plaintiff adequately raised arguments as to whether certain materials withheld under Exemption4 constituted "confidential commercial information," and "could not have known it needed to raise issues surrounding Exemption 6 at the time its administrative appeal was due" since that exemption was not cited as a basis for withholding in the FCC's initial determination.
Citizens for Resp. & Ethics in Wash. v. FEC, No. 11-951, 2011 WL 6880679 (D.D.C. Dec. 30, 2011) (Kollar-Kotelly, J.). Holding: Denying FEC's motion to dismiss for lack of subject matter jurisdiction; and granting FEC's motion for summary judgment for failure to exhaust administrative remedies. The court grants defendant's motion for summary judgment for failure to exhaust administrative remedies. Examining the text of the FOIA, the court finds that, in order to qualify as a determination under the FOIA, "the actual statute indicates three things are required in [an agency's] notice to the requesting party: (1) whether the agency intends to comply with the request; (2) the reasons for the agency's compliance or non-compliance; and (3) notice of the right to appeal if the determination was adverse." As such, the court concludes that "[c]learly, the FOIA does not require the responding agency to respond and produce responsive documents within twenty days in order to require exhaustion of administrative remedies." Instead, the court finds that "in the event an agency intends to produce documents in response to the request, the agency need only (1) notify the requesting party within the twenty days that the agency intends to comply; and (2) produce the documents 'promptly.'"
In this case, the court concludes that "the FEC did more than acknowledge receipt of Plaintiff's request before it filed suit." Specifically, "within two days of transmitting the request to the FEC," the FEC "agreed to produce responsive documents on a rolling basis," and "the FEC was also reasonably prompt in producing documents to [plaintiff]." The court finds that "[t]en weeks to search, review, and produce documents in response to relatively broad requests in this context is not unreasonably long as to require a finding of constructive exhaustion." The court further notes the D.C. Circuit's decision in Oglesby v. U.S. Department of the Army supports this reading of the exhaustion requirement where "it held that an agency's response 'is sufficient for purposes of requiring an administrative appeal if it includes: the agency's determination of whether or not to comply with the request; the reasons for its decision; and notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse.'" Here, the court determines that "the FEC provided the response that the Oglesby court noted is a sufficient 'determination' under FOIA to trigger the administrative exhaustion requirement."
The court also dismisses plaintiff's contention that "Congress intended to allow direct access to the courts in the face of agency delay" and that the existence of Open America stays, which can be relied on by agencies that demonstrate "exceptional circumstances" under the FOIA, support its position. Rather, "[u]nder the Court's interpretation of the § 552(a)(6)(A), requesting parties still have immediate access to the courts in the event that the agency fails to (1) respond at all; or (2) merely indicates that it is 'processing' the request, but does not indicate whether the agency will comply." The court comments that "adherence to the language of the third sentence of § 552(a)(6)(C)(i), which requires 'prompt' production of responsive documents if an agency intends to comply with the request, will guard against any abuse by responding agencies." The court further observes that the purposes of the exhaustion requirement to "prevent[ ] premature inference with agency processes" and to "ensur[e] consistency in responding to requests" "supports requiring [plaintiff] to exhaust its remedies in this case." Moreover, the court notes that "[h]ere, the FEC has not had the opportunity to address any of the objections [plaintiff] lodges to scope of the production, adequacy of the searches, or claimed exemptions and withheld documents." Additionally, "[p]roviding the FEC the opportunity to review [plaintiff's] objections through the administrative appeal process would among other things allow the agency time to correct any errors alleged by [plaintiff], and create a full record for the Court to review should [plaintiff] seek additional review of the FEC's decision."
ExxonMobil Corp. v. U.S. Dep't of Commerce, No. 10-250, 2011 WL 6091470 (D.D.C. Dec. 8, 2011) (Lamberth, J.).Holding: Granting defendant's motion for summary judgment on the basis that plaintiff failed to exhaust its administrative remedies with respect to three requests, and that other requested records were not "agency records" subject to the FOIA; and dismissing plaintiff's FOIA claims brought under the Administrative Procedure Act and the Mandamus Act. Exhaustion of administrative remedies: The court concludes that plaintiff failed to exhaust its administrative remedies with respect to certain requests where it failed to submit timely administrative appeals in connection with two separate FOIA requests and, for a third request, "did not even file an administrative appeal of EPA's response . . . [until] almost one month after filing its Complaint in this Court." Accordingly, the court notes that it "will not reach the merits of [plaintiff's] arguments regarding these FOIA requests."
Ozment v. DHS, No. 11-429, 2011 WL 6026590 (M.D. Tenn. Dec. 1, 2011) (Haynes, J.). Holding: Granting defendant's motion to dismiss on the basis that plaintiff failed to exhaust his administrative remedies as to the issue of the adequacy of the agency's response. The court concludes that "Plaintiff was not required to exhaust his administrative remedies before filing this action" because although Immigration and Customs Enforcement's (ICE's) response "was within the statutory period and indicated its intent to comply with Plaintiff's request, [it] was not sufficient under 5 U.S.C. § 552(a)(6)(A)(i) as ICE's letter does not advise Plaintiff of his right to appeal any adverse decision." However, the court determines that "Plaintiff has not exhausted his administrative remedies with regard to the adequacy of ICE's response," which was made during the course of litigation. The court holds that "[t]o challenge the adequacy of ICE's response, Plaintiff must first exhaust his administrative remedies on that issue."
Banks v. DOJ, No. 06-1950, 2011 WL 4448602 (D.D.C. Sept. 26, 2011) (Sullivan, J.). Holding: Granting partial summary judgment to defendant based on plaintiff's failure to exhaust his administrative remedies for two requests and on the propriety of defendant's withholdings under Exemptions6 and 7(C); and denying, without prejudice, defendant's motion for summary judgment for information withheld pursuant to Exemptions 7(D) and 7(E). With respect to plaintiff's request for an open investigative file for which U.S. Postal Inspection Service (USPIS) invoked Exemption 7(A), the court concludes that "[a]bsent any submission from plaintiff to overcome defendant's showing [that it had no record of an administrative appeal from plaintiff regarding this matter], . . . plaintiff failed to exhaust his administrative remedies." The court also holds that plaintiff failed to exhaust administrative remedies with regard to his request for information about third parties where "USPIS regulations require that a requester submit written authorization for the release of records pertaining to third parties, and defendant establishes that plaintiff failed to do so." Additionally, although plaintiff claims that the third parties named in the requests are his aliases, the court observes that "[n]othing in the request itself suggests that plaintiff was requesting information about himself when he listed the four individuals' names in his FOIA request."
Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court finds that "[a]lthough plaintiff challenges the adequacy of the FBI's search for records pursuant to [a specific request, he] has failed to exhaust his administrative remedies [as to that request] and, therefore, judicial review is barred."
Bickford v. Gov't of the United States, No. 10-2323, 2011 WL 3891805 (D.D.C. Sept. 6, 2011) (Friedman,J.). Holding: Dismissing, suasponte, plaintiff's Privacy Act or FOIA claim under Rule 12(b)(6); and denying her related motion to obtain access to medical and legal records. "Because there is no indication in [plaintiff's] complaint (or in her motion) that she has ever submitted a request for records to any government agency, the Court will dismiss [plaintiff's] Privacy Act or FOIA claim under Rule 12(b)(6) and will deny [her] related motion to obtain access to all medical and legal records."
Sauer, Inc. v. NASA, No. 11-926, 2011 U.S. Dist. LEXIS 94273 (M.D. Fla. Aug. 23, 2011) (Presnell,J.). Holding: Denying defendant's motion to dismiss based on plaintiff's failure to exhaust administrative remedies. The court concludes that plaintiff was not required "to pursue an administrative appeal" before filing the instant action. The court notes that although NASA provided a partial response to plaintiff, at the time that the lawsuit was filed, it still had not made a final determination with respect to hundreds of additional pages that were responsive to plaintiff's request. As such, the court concludes that plaintiff's "right to bring suit was not terminated by NASA's incremental response."
Chaplin v. Stewart, No. 10-518, 2011 WL 2727871 (D.D.C. July 14, 2011) (Huvelle, J.), Holding: Granting defendant's motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies by paying assessed fees. The court grants EOUSA's motion for summary judgment based on plaintiff's failure to pay assessed fees or to modify his request to reduce the costs associated with fulfilling his request. The court notes that "[i]t is undisputed (1) that defendant complied with DOJ regulations by informing plaintiff about the fee requirements and suggesting ways to reduce his costs, and (2) that plaintiff has neither paid nor committed to paying the assessed fees." Additionally, the court finds that plaintiff's argument "that he should not be required to pay the fee 'due to defendant's non-compliance and/or violations of the FOIA over the Past 4 1/2 years'" "lacks merit." The court notes that "[t]he commencement of a civil action pursuant to the FOIA does not relieve a requester of his obligation to pay any assessed fees."
Flaherty v. President of the United States, No. 11-124, 2011 WL 2715082 (D.D.C. July 13, 2011) (Walton, J.). Holding: Granting motion to dismiss claims against all parties except IRS; and granting IRS's motion to dismiss for failure to state a claim upon which relief may be granted. As an initial matter, the court notes that "when a FOIA defendant disputes that a FOIA plaintiff has fulfilled the exhaustion requirements, 'the matter is properly the subject of a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.'" The court dismisses plaintiff's claims against the IRS for failure to exhaust his administrative remedies in connection with four different requests. With respect to two requests, the court finds that "plaintiff failed to approve a projected fee associated with his first request as instructed by the IRS's reply letter and in accordance with the IRS's regulations" and "failed to properly file his second request by omitting proper identification." Accordingly, the court holds that "[b]ecausethe plaintiff's first and second requests did not comply with the IRS's published regulations, the plaintiff's FOIA claims based on these two requests fail the exhaustion requirement." As to another request made by plaintiff, the court concludes that plaintiff failed to exhaust his administrative remedies where it was undisputed that he failed to timely file an administrative appeal as required by the agency's regulations. Regarding his remaining request for which the plaintiff claimed constructive exhaustion, the court determines that "because the plaintiff did not file a lawsuit after the expiration of the twenty day statutory time period but before the IRS's response, the constructive exhaustion was cured and an administrative appeal had to be filed to satisfy the exhaustion requirement."
Ebling v. DOJ, No. 10-914, 2011 WL 2678935 (D.D.C. July 11, 2011) (Kollar-Kotelly, J.). Holding: Holding that the terms of a third party's plea agreement prohibiting the subject of the request from requesting records pertaining to his criminal case is not binding on plaintiff who is not a party to the agreement; ordering defendants to show cause as to why the court should not grant partial summary judgment to plaintiff on this issue; and granting, in part, DOJ's motion for summary judgment based on plaintiff's failure to exhaust administrative remedies with respect to one of her claims. The court holds that plaintiff failed to exhaust her administrative remedies with respect to a request submitted to the FBI. First, the court finds that DOJ "introduced unrefuted evidence establishing that [it] has no record of ever receiving an appeal from [plaintiff] in connection with this particular request," noting that the agency "is entitled to a 'presumption of good faith.'" The court dismisses plaintiff's contention that she faxed an administrative appeal to DOJ, finding that despite her submission of a fax confirmation page "there still is no basis for a reasonable fact-finder to conclude that what she sent was, in fact, a letter appealing [that particular request]." Moreover, the court finds that plaintiff's failure to comply with DOJ's published regulations, which provide for mailing of appeals to a physical address, rather than receipt by fax, also provides a ground for failure to exhaust.
Salanitro v. OPM, No. 10-363, 2011 WL 2670076 (M.D. Fla. July 8, 2011) (Corrigan, J.). Holding: Granting defendant's motion to dismiss based on plaintiff's failure to submit a proper FOIA request. The court concludes that plaintiff did not exhaust his administrative remedies prior to filing suit where he "failed to submit a proper FOIA request by not sending the request to the proper OPM office as identified in the OPM's regulations."
Marciano v. Shulman, No. 09-1499, 2011 U.S. Dist. LEXIS 71065 (D.D.C. July 1, 2011) (Kennedy,J.). Holding: Concluding the plaintiff failed to exhaust his administrative remedies. At the outset, the court notes that plaintiff contended that "this Court should construe his claim under § 6103 as 'an effective . . . request' under the [FOIA]." However, the court finds "[i]t is undisputed that [plaintiff] has failed to exhaust his administrative remedies in this case." Although the IRS's reply to plaintiff's request for his tax returns "reads very much like a denial," the court finds that his "request, if properly made, was effectively denied, and that he was thus required to exhaust his administrative remedies, which he failed to do." As such, the court lacks jurisdiction to hear plaintiff's FOIA claim.
Brown v. FBI, No. 10-1292, 2011 WL 2516420 (D.D.C. June 24, 2011) (Lamberth,J.). Holding: Denying as futile plaintiff's motion for leave to amend for all FOIA claims, except one brought against the Tax Division of DOJ; denying plaintiff's motion for summary judgment on the basis that he has not demonstrated that he exhausted his administrative remedies; and denying FBI's motion to dismiss. The court dismisses, with leave to amend, plaintiff's FOIA claim against BOP where he failed to allege that he exhausted his administrative remedies and "his complaint merely states that '[t]he agency has refused to provide the records' he requested." The court finds that "[t]he facts here do not affirmatively preclude relief – the issue is that plaintiff has not alleged enough, not that any undisputed facts prevent him from succeeding on the merits – and [he] would have an actionable claim if he would explicitly allege administrative exhaustion by pointing to specific documents."
Stuler v. IRS, No. 10-1342, 2011 U.S. Dist. LEXIS 66942 (W.D. Pa. June 23, 2011) (Ambrose,J.). Holding: Dismissing, without prejudice, the complaint for failure to exhaust administrative remedies. As an initial matter, the court notes that the "a failure to exhaust administrative remedies under FOIA is properly evaluated pursuant to [Federal Rule of Civil Procedure] 12(b)(6)," i.e., failure to state a claim upon which relief may be granted. Upon reviewing the IRS's FOIA regulations, the court notes that "the IRS requires that the requester '[s]tate the firm agreement of the requester to pay the fees for search, duplication, and review . . . [or] place an upper limit for such fees that the requester is willing to pay, or request that such fees be reduced or waived and state the justification for such request.'" In accordance with the agency regulations, the court finds that "[a]bsent demonstration or claim of entitlement to a fee waiver, or commitment to pay applicable fees, an action is subject to dismissal for failure to state a claim." Here, the court concludes that plaintiff's "FOIA request did not comply with applicable regulations," noting that his "firm promise to pay fees and costs in the amount of '$00.00' is, on its face, not a promise to pay anything – it is a promise in form only, and not in substance." Moreover, the court finds that "[p]laintiff's 'promise' does not constitute a request for a waiver, as it does not state the justification for any such request." The court determines "[w]hen[, as here,] a requester declines to provide a firm agreement to pay for, or request a waiver of, fees and costs, the process is properly suspended pending compliance."
Vest v. Dep't of the Air Force, No. 09-1083, 2011 WL 2469593 (D.D.C. June 22, 2011) (Walton,J.). Holding: Dismissing claims against six defendants based on plaintiff's failure to exhaust administrative remedies; granting summary judgment for three defendants based on the adequacy of their searches; and concluding that the FBI properly asserted Exemption 7(C) for records concerning a third party. The court concludes that plaintiff failed to exhaust administrative remedies for requests submitted to the Department of the Army, Department of the Navy, Marine Corps, DHS, Department of State, and the CIA. With respect to a request submitted to the Army, plaintiff failed to reasonably describe the records sought concerning a third party or to respond to the Army's request for additional information. The court finds that "plaintiff's argument that he should have been informed of his right to appeal is without merit" because his unperfected FOIA request did not trigger the Army's obligations under the FOIA. Likewise, the court finds that with respect to his request to the Navy, "plaintiff never responded to the request for additional information and thus failed to perfect his FOIA request." The court also finds that plaintiff failed to exhaust his administrative remedies in connection with a request submitted to the Marine Corps where the Marine Corps advised the plaintiff of the deficiencies in his request, but plaintiff never cured those deficiencies or indicated a willingness to pay fees or request a fee waiver as required by the agency's FOIA regulations.
With regard to a request sent to DHS, the court finds that the plaintiff failed to exhaust administrative remedies "because, among other reasons, he failed to provide third-party authorization for the release of documents as mandated by [the agency's FOIA regulations]." The court concludes plaintiff's argument that "the regulations are invalid" "lacks merit," finding that plaintiff's reliance on the D.C. Circuit's decision in Greentree v. U.S. Customs Service for the proposition that "an agency may not refuse to process a request for third party information in the absence of a privacy waiver because the Privacy Act is 'not to be used as a barrier to FOIA access'" is inapposite. The court notes that Greentree dealt with the narrow issue of whether the Privacy Act qualifies as an Exemption 3 statute, an issue not relevant here. As to plaintiff's request to the Department of State, the court finds that "the agency's declaration clearly indicates that the plaintiff failed to make a proper FOIA request, given that its Information and Privacy Coordinator 'could not process [the] request' 'without clarification of the records sought[ ] and provision of [the] additional information [that was] requested.'" Here, "plaintiff did not respond to the Department of State's request for additional information... and thus failed to perfect his FOIA request." Similarly, the court concludes that plaintiff did not perfect his request to the CIA where he failed to provide additional identifying information for two individuals who were the subjects of his request.
Kottori v. FBI, No.10-11913, 2011 WL 1827673 (D. Mass. May 13, 2011) (Bowler,Mag.). Holding: Dismissing the complaint for lack of subject matter jurisdiction based on plaintiff's failure to exhaust her administrative remedies. The court dismisses the complaint for lack of subject matter jurisdiction, concluding that plaintiff failed to exhaust administrative remedies where "neither FBI headquarters nor the FBI's Boston field office have received any document requests from plaintiff" and "[p]laintiff has not offered any evidence to the contrary." The court notes that "by failing to submit a FOIA request, plaintiff never began the FOIA administrative process and thus cannot show that she has exhausted all administrative remedies."
Muset v. Comm'rIshimaru, No. 07-4083, 2011 U.S. Dist. LEXIS 47587 (E.D.N.Y. Apr. 30, 2011) (Vitaliano, J.). Holding: Dismissing plaintiff's FOIA claim as moot as to the records released by IRS and dismissing for lack of subject matter jurisdiction as to the withheld documents due to plaintiff's failure to exhaust his administrative remedies. Exhaustion of administrative remedies: The court finds that "as a matter of FOIA process" that plaintiff "was required first to appeal directly to the IRS before seeking federal judicial relief" and that his "failure to exhaust the administrative remedies provided by FOIA divests a federal district court of subject matter jurisdiction over any claim regarding that request for judicial relief."
Bory v. U.S. R.R. Ret. Bd., No. 09-1149, 2010 U.S. Dist. LEXIS 130545 (M.D. Fla. Dec. 9, 2010) (Melton, J.). The court denies the agency's motion for summary judgment because "a question of fact exists on the record" as to "whether Defendant thoroughly searched its records and fully responded to Plaintiffs' requests" and "whether Plaintiffs should have been notified of their right to appeal Defendant's responses." The court finds that "[t]o support Defendant's position that it need not notify FOIA requesters of their right to appeal whenever it claims to have provided all information and also then to require all requesters to administratively exhaust agency remedies before seeking relief in federal court when they dispute that all information was provided, simply would not be fair, and is not required to fulfill the purposes of the exhaustion requirement, which include giving Defendant an opportunity to correct its mistake or omission."
Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401 (D. Colo. Dec. 7, 2010) (Arguello, J.). As an initial issue, the court notes that the "view of the Tenth Circuit appears to be that exhaustion is a jurisdictional prerequisite," rather than a prudential consideration, but comments that "[t]his distinction is of little moment in the instant case as the Court finds the failure of Plaintiff to exhaust its remedies bars judicial review under either view." Here, the court determines that plaintiff failed to exhaust its remedies with respect to three categories of information that it did not identify in its initial request and, accordingly, concludes that plaintiff did not provide the SEC with "'an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'"
Strunk v. U.S. Dep't of the Interior, No. 10-0066, 2010 WL 4780845 (D.D.C. Nov. 24, 2010) (Leon, J.). The court grants the Department of the Interior's unopposed motion to dismiss a portion of plaintiff's complaint based on a FOIA request for which the agency had no record of receiving.
Godaire v. Napolitano, No. 10-1266, 2010 U.S. Dist. LEXIS 122237 (D. Conn. Nov. 17, 2010) (Kravitz, J.). Plaintiff is deemed to have constructively exhausted his administrative remedies with respect to a request submitted to DOJ's Office of the Inspector General (OIG) where "his request to the DOJ complied with the agency's own regulations." First, the court determines that plaintiff properly followed DOJ regulations by sending his initial request to the OIG – the component most likely to maintain records responsive to his request – because "it is not unreasonable to presume that the component of the DOJ that received a complaint is the component that maintains records related to the complaint." Second, the court holds, in accordance with Second Circuit case law, that "under the DOJ’s own regulations, a component of the agency 'has no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.'" Here, the court finds that plaintiff's "Complaint does not indicate that the DOJ attempted to assist [him] in refining his FOIA request."
The court dismisses plaintiff's FOIA claims against the FCC "without prejudice to any amendment he may wish to file" because it is not clear from the record whether plaintiff complied with the agency's regulations regarding fees. FCC regulations provide that "a FOIA request 'shall . . . specify the maximum search fee the person making the request is prepared to pay or a request for a waiver or reduction of fees if the requester is eligible.'" The court finds that plaintiff "did not specify a maximum search fee" in his request and "has not alleged that he submitted a request to the FCC for a waiver or reduction of fees."
The court dismisses plaintiff's claims against the DHS on the basis that his requests are defective and do not comply with the agency's regulations. With respect to one of plaintiff's requests that "sought documents held by other agencies, and asked the [DHS] to compile information about documents 'not in [its] possession,'" the court finds that it extends beyond the of scope of the FOIA. Additionally, the court concludes that plaintiff did not abide by DHS regulations when requesting records related to individuals, finding that "[a]lthough [plaintiff] requested records about both himself and another individual [], in his letters . . . he did not state his date and place of birth, he did not have his signature notarized or sign under penalty of perjury, and he did not provide authorization from [the third party] or proof of [that third party's] death." Regarding a request made to the Office of the Secretary of DHS, the court finds that plaintiff did not send his request to the proper FOIA office specified in DHS's regulations. The court determines that "[b]ecause [plaintiff] has not alleged that his FOIA request was sent to or received by a [DHS] component that is designated to receive FOIA requests under the agency's own regulations, [he] has not even constructively exhausted his administrative remedies, and amendment of his Complaint with regard to his request to [DHS] would be futile."
Wall v. EOUSA, No. 09-344, 2010 U.S. Dist. LEXIS 120826 (D. Conn. Nov. 16, 2010) (Hall, J.). The court rejects as "gratuitous" EOUSA's argument that plaintiff failed to exhaust his administrative remedies because he did not request a fee waiver along with his initial FOIA request, but rather first requested a waiver of fees in connection with his administrative appeal. Given that DOJ's appellate authority addressed the issue and given that exhaustion "is prudential, not jurisdictional," dismissal is not appropriate. Further, the court determines that the "the purposes behind the exhaustion requirement have been more than adequately served here" because "[t]he Department was not deprived of an opportunity to create a factual record."
Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 120895 (E.D. Wash. Nov. 15, 2010) (Shea, J.). Exhaustion of administrative remedies/proper FOIA request: The court holds that since plaintiff "has not submitted a proper FOIA request, the Board was under no obligation to adhere to the statutory time requirements [to respond to his request] and [he] failed to exhaust his administrative remedies." The court observes that "[t]he statutory time limits for an agency's response are not triggered until a proper FOIA request is received." However, here, the court finds that none of plaintiff's three broadly-worded requests constitute proper FOIA requests because they asked questions or "do not reasonably describe the records sought" and "would unduly burden the FOI Office and significantly interfere with the Board's operations."
K-Mar Indus., Inc. v. DOD, No. 10-984, 2010 WL 4829965 (W.D. Okla. Nov. 4, 2010) (Friot, J.). The court denies defendants' motion to dismiss plaintiff's FOIA claim for failure to exhaust administrative remedies where "many of defendants' arguments concern the merits of their contention that delays [in processing the FOIA request] have been justified rather than the propriety of dismissal for failure to exhaust remedies." The court finds that "[i]n contrast to the cases cited by the defendants, here there are no issues regarding lack of notice to the government of plaintiff's FOIA request, or the sufficiency of plaintiff's FOIA request." Additionally, "[p]laintiff has not taken a scattershot approach to its request and has not failed to appeal a denial despite notification of appeal rights."
Torres v. DHS, No. 09-8640, 2010 U.S. Dist. LEXIS 120353 (S.D.N.Y. Nov. 2, 2010) (Fox, Mag.). As a preliminary matter, the court finds that "FOIA's statutory language and a significant number of cases in this circuit support the conclusion that exhaustion of administrative remedies is a jurisdictional prerequisite to suit in federal court." In the instant case, the court dismisses plaintiff's FOIA claims for lack of subject matter jurisdiction because "the Court cannot discern [from his complaint] whether [he] made a request for records to DHS, let alone whether he appealed a denial of that request, prior to filing the instant action."
Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 117203 (E.D. Wa. Nov. 2, 2010) (Shea, J.). The court finds that plaintiff's "non-compliance with FOIA" by not reasonably describing the records sought does not constitute a failure to exhaust his administrative remedies. Instead, the court concludes that plaintiff exhausted his administrative remedies where "the Board did not comply with the FOIA's statutory time requirements." The court notes that under the FOIA the Board was required to "1) notify [plaintiff] that his request could not be processed within the ten-day extension, and 2) allow him to either limit his request so that it could be processed within the time limit or arrange for an alternative time frame." The court orders defendant to submit a supplemental briefing to explain why the case the should be dismissed for lack of subject matter jurisdiction given defendant's apparent failure to comply with the statutory time limits.
Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.). With respect to two of five FOIA requests submitted by plaintiff, the court finds that he "failed to comply with the administrative mechanisms adopted by Congress" and, accordingly, "cannot now complain that FOIA has been violated."
Powell v. Gibbons, No. 09-093, 2010 WL 4293278 (D. Nev. Oct. 20, 2010) (Jones, J.). The court concludes that it lacks jurisdiction over plaintiff's FOIA claim where "he fails to allege the nature of the documents that he seeks," and "also fails to allege that the United States Department of Justice and the Federal Bureau of Prisons has the records he seeks and that he made a full and proper FOIA request." The court further notes that "to the extent that plaintiff can adequately allege a cognizable claim under FOIA in the future, that claim may be asserted in an action brought under FOIA, rather than in the instant civil rights actions."
Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Notwithstanding the fact that duplication fees were incurred in connection with plaintiff's request, the court grants his request that he receive 100 pages free of charge because "[a]lthough the EOUSA may require payment of copying fees prior to the release of responsive records, neither its written notice to plaintiff nor its declaration in support of its summary judgment motion precludes the release of 100 pages of records at no charge to plaintiff." The court further notes that even though EOUSA advised plaintiff that his "request would be closed if payment was not received within 30 days, [] it did not state expressly that plaintiff's failure to respond timely would be cause for administrative closure of the request."
Plaintiff did not exhaust his administrative remedies with respect to five "related" files in which his name was mentioned where DEA offered plaintiff the option to have those files manually searched and plaintiff did not agree to a pay the associated costs or challenge the DEA's motion on this ground.
Voinche v. Obama, No. 09-1081, 2010 WL 3833736 (D.D.C. Sept. 29, 2010) (Sullivan, J.). The court grants defendants' motion for summary judgment with respect to the Council of Environmental Quality where defendants assert that plaintiff did not file an administrative appeal, and he "does not dispute this evidence."
Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). The court decides to adjudicate on the merits several requests for which the plaintiff failed to file an administrative appeal "[g]iven that the SEC's correspondence with the plaintiff [was] arguably vague as to whether the plaintiff was appraised that he had the right to appeal" and "also given that the defendant subsequently responded to those production requests."
Benoit v. IRS, No. 09-242 (S.D. Cal. Sept. 20, 2010) (Houston, J.). The court dismisses plaintiff's action for lack of subject matter jurisdiction because plaintiff's complaint, filed before the deadline for the IRS's response to his administrative appeal, "divested the agency of its ability to provide a record for the Court and was premature." With respect to plaintiff's argument that he was entitled to file suit ten days after submitting the appeal because he requested expedited processing of his request, the court finds that the IRS had twenty days to respond because his administrative appeal "does not include any discussion of [his] request for expedited processing," and that he failed to "follow the procedure required for requests for expedited processing" set forth in the agency's regulations.
Hines v. United States, No. 09-1949, 2010 WL 3488252 (D.D.C. Sept 7, 2010) (Urbina, J.). As a preliminary matter, the court holds that "the exhaustion requirement is a prudential consideration, not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust does not deprive the court of subject-matter jurisdiction," "[b]ut [that] as a prudential consideration, the exhaustion requirement may still bar judicial review if both the administrative scheme at issue and the purposes of exhaustion support such a bar." Here, the court finds that plaintiff failed to exhaust his administrative remedies because he "does not dispute that he failed to pay the assessed fee before filing this lawsuit, and there is no indication that he sought a fee waiver from the agency and was denied" or that he "sought to [administratively] appeal the matter."
Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). The court concludes that plaintiff failed to exhaust his administrative remedies with respect to three requests made to DEA. The court rejects plaintiff's arguments that his failure to exhaust "'presented no risk of undermining the purposes and policies underlying the exhaustion requirement.'" As to the three requests for which DEA provided no substantive response until after the filing of the lawsuit, the court finds "it is not reasonable to expect the plaintiff to exhaust his administrative remedies by filing an appeal . . . and the law does not require him to do so." Additionally, the court determines that plaintiff failed to exhaust his remedies with DOJ's Civil Division because he did not submit a proper request. "The plaintiff's [Federal Tort Claims Act] claim does not constitute a proper FOIA request because it neither demands the disclosure of agency records nor describes the records sought."
United States v. Medley, Nos. 04-304, 04-480, 2010 WL 3220659 (S.D. Tex. Aug. 13, 2010) (Jack, J.). The court denies plaintiff's motion to obtain a copy of his case file pursuant to the FOIA. "[T]o the extent [plaintiff] is seeking information under the FOIA from the U.S. Attorney used in the prosecution of the federal charges against him, his request under the FOIA is not properly before this Court because there is no evidence that [plaintiff] has requested the documentation from the U.S. Attorney and been refused."
Wilson v. DOT, No. 09-1748, 2010 WL 3184300 (D.D.C. Aug. 11, 2010) (Collyer, J.). Plaintiff failed to exhaust his administrative remedies with respect to two requests because he did not appeal to the appropriate "DOT official for processing appeals" as required by the agency's FOIA regulations. The court holds that plaintiff's complaints lodged with several DOT offices and his request for mediation were insufficient to exhaust his administrative remedies.
Kemmerly v. U.S. Dep't of the Interior, No. 07-9794, 2010 U.S. Dist. LEXIS 75622 (E.D. La. July 26, 2010) (Berrigan, J.). The court concludes that it lacks jurisdiction to review plaintiff's FOIA claims with respect to three of his requests. The court notes that plaintiff appealed one request based on DOI's failure to timely respond, but since he did not "resolve[] [the] fee issues as is required before his request could be processed," his administrative appeal "was properly closed according to DOI regulations." Additionally, the court finds that plaintiff's decision to wait one year for DOI to respond to two administrative appeals before filing a lawsuit on the underlying requests "prevents him from alleging constructive exhaustion of administrative remedies."
Schwarz v. DOJ, No. 10-0562, 2010 WL 2836322 (E.D.N.Y. July 14, 2010) (Cogan, J.). The court determines that plaintiff's failure to file an administrative appeal in connection with her FOIA requests to the Coast Guard and the FBI "does not affect the Court's subject matter jurisdiction." The court further finds although plaintiff's claims against those agencies could be dismissed for failure to exhaust, "the existence of subject matter jurisdiction does not make dismissal on that ground mandatory." Instead, the court concludes that it is appropriate to adjudicate the case on the merits, because "[t]here are no prudential reasons for avoiding a final resolution of plaintiff['s] claims." The court notes that to hold otherwise "would create the anomalous situation" whereby claims against the Coast Guard and the FBI could be dismissed without prejudice, but claims against DOJ "leave the potential for a dismissal with prejudice" since plaintiff is deemed to have exhausted her claims against that third defendant.
Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). Because the administrative appeal of one of plaintiff's requests resulted in a remand to BOP for further processing, "the Court will enter judgment for defendant on this claim without prejudice to plaintiff's filing either a new civil action or a motion to reopen this action after he has exhausted his administrative remedies."
Tibbs v. Sebelius, No. 09-773, 2010 U.S. Dist. LEXIS 42464 (S.D. Ohio Apr. 30, 2010) (Marbley, J.). Even if the court did not dismiss plaintiff's FOIA action for failure to name a proper party defendant, his claim would be dismissed for failure to exhaust his administrative remedies. There is no record of plaintiff having filed an administrative appeal of HHS's initial response to his FOIA request.
Saldana v. BOP, No. 08-1963, 2010 WL 1656862 (D.D.C. Apr. 27, 2010) (Bates, J.). Because plaintiff was found to owe $140 in search fees to defendant EOUSA that he had agreed to pay in connection with a previous FOIA request, under DOJ regulations, "EOUSA is entitled to refuse to do any more work on any requests from [plaintiff] until he has paid the $140 in arrears." Plaintiff's argument "that because he reformulated his request, the agency's failure to respond is illegal" is "frivolous," as plaintiff's reformulations expanded, rather than narrowed his original request.
Similarly, when defendant BOP informed plaintiff of an estimated search fee of $392 associated with his request, he did not modify his request in a way that would reduce the fee estimate. Thus, plaintiff did not exhaust his administrative remedies as to defendant BOP either.
Conversely, because plaintiff did not agree to pay a copying fee for certain USMS records, defendant USMS cannot claim that he has failed to exhaust his administrative remedies. Plaintiff "is free to decline an offer to copy records he does not want." This decision on plaintiff's part "does not deprive him of his right to challenge the adequacy of the search that produced [these records] or to assert challenges with respect to the two other requests he directed to the USMS."
Taitz v. Obama, No. 10-151, 2010 WL 1525030 (D.D.C. Apr. 14, 2010) (Lamberth, C.J.). Plaintiff failed to exhaust her administrative remedies. She filed her complaint prematurely, less than 20 business days after defendant Social Security Administration received her administrative appeal of the agency's response to her initial request.
Kenney v. DOJ, No. 07-1989, 2010 WL 1242273 (D.D.C. Apr. 1, 2010) (Friedman, J.). As to plaintiff's 2004 request, the FBI responded by informing plaintiff that he would be required to submit privacy waivers or proof of death for the individuals about whom he sought records. "[P]laintiff had two options for proceeding: he could either have complied with the letter by submitting the waivers and/or certificates, or he could have responded and contested the FBI's position that submitting waivers or death certificates was required. . . . [However,] he failed to respond to the letter in any fashion. Plaintiff thus failed to exhaust his administrative remedies. While plaintiff now maintains that he should not have been required to resubmit privacy waivers for individuals who had already signed waivers for an earlier request, he has not presented this argument to the FBI through the administrative process. For the Court to consider plaintiff's argument here without allowing the FBI to address it through the administrative process 'would undercut "the purposes of exhaustion. . . ."'"
King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.). It is undisputed that plaintiff has not paid the search fees required in order for the DEA to search 29 possibly responsive files. Thus, he has not exhausted his administrative remedies as to this part of his request.
Schwaner v. Dep't of the Army, No. 09-0476, 2010 WL 938802 (D.D.C. Mar. 17, 2010) (Sullivan, J.). By not filing an administrative appeal of the Army's initial response to his request, plaintiff failed to exhaust his administrative remedies. The court is "not persuaded" by plaintiff's claim that he never received the Army's response, "because he submits no declaration or other evidence to support his contention that he did not receive a response, whether timely or not, to his FOIA request. . . . Although defendant responded to plaintiff's FOIA request beyond the time limits set forth by statute, its declarant demonstrates that the Army responded before plaintiff filed this civil action. At that point, plaintiff was obligated to exhaust his administrative remedies, and he fails to establish that he did so."
Calhoun v. DOJ, No. 08-1663, 2010 WL 893680 (D.D.C. Mar. 15, 2010) (Walton, J.). It is undisputed that plaintiff has failed to exhaust his administrative remedies because he has not filed a FOIA request. Plaintiff claims that the BOP's confiscation, per agency regulations, of his presentence report constitutes the denial of a FOIA request. "This argument lacks merit."
Strunk v. Dep't of State, No. 08-2234, 2010 WL 931197 (D.D.C. Mar. 15, 2010) (Leon, J.). Because plaintiff did not submit a written authorization from President Obama for release of information pertaining to him, plaintiff cannot be said to have submitted proper FOIA requests to defendants State Department and DHS, because these agencies require such authorizations for third-party requests. As a result, plaintiff has failed to exhaust his administrative remedies.
Ioane v. Comm'r of IRS, No. 09-00243 (D. Nev. Mar. 11, 2010) (Jones, J.). Plaintiff did not mail his request for IRS records to any of the locations designated by IRS regulations as recipients of FOIA requests. As such, plaintiff cannot be said to have submitted a proper FOIA request to the IRS, and therefore did not exhaust his administrative remedies. The fact that the Department of Justice received plaintiff's request is irrelevant to plaintiff's claim against the IRS.
Thomas v. Comptroller of the Currency, No. 09-794, 2010 WL 532063 (D.D.C. Feb. 16, 2010) (Kennedy, J.). The court finds that plaintiff constructively exhausted his administrative remedies. It is undisputed that defendant did not respond to plaintiff's request within the statutorily mandated deadline, and that plaintiff did not receive two follow-up letters sent by defendant to him. Thus, under defendant's own regulations, plaintiff exhausted his administrative remedies.
McKevitt v. Mueller, No. 09-3744, 2010 WL 532508 (S.D.N.Y. Feb. 16, 2010) (Koeltl, J.). "This case does not arise under the FOIA and thus there is no jurisdiction under the FOIA, because the FOIA administrative process was never used. The plaintiff never filed a FOIA request under the DOJ's procedures for such requests. . . . The plaintiff did not make a FOIA request, have it denied, and then appeal in the DOJ. Rather, he sought evidence under the Hague Evidence Convention. The Government declined to produce documents under the rationale of FOIA exemptions, but the Government's response was not a response to a FOIA request because no such FOIA request was ever made." Additionally, "the plaintiff's argument that the DOJ failed to respond timely is unavailing. The plaintiff did not file a FOIA request, and therefore the FOIA's time for response provision was never triggered." Furthermore, "[t]he defendants are plainly correct that even if the plaintiff had standing, there has not yet been administrative exhaustion and the plaintiff cannot sue at this time."
Sterrett v. Dep't of the Navy, No. 09-2083, 2010 U.S. Dist. LEXIS 4046 (S.D. Cal. Jan. 20, 2010) (Gonzalez, C.J.). As to plaintiff's request for the background material, she has not exhausted her administrative remedies under the Privacy Act because she failed to comply with the Navy's regulations regarding Privacy Act requests.
United States v. Robertson, No. 85-112, 2010 WL 234854 (E.D. Cal. Jan. 14, 2010) (Wanger, J.). Plaintiff has made no showing that the bond he seeks is a federal agency record "or that he has in any way complied with the administrative requirements of FOIA."
Gadd v. United States, No. 08-04229, 2010 WL 60953 (E.D. Ark. Jan. 5, 2010) (Wright, J.). Because plaintiff did not file an administrative appeal from defendant's denial of his request for records, and did not file his complaint at a time when he had a claim for constructive exhaustion, he has not exhausted his administrative remedies.
Goddard v. Whitmer, No. 09-404, 2010 U.S. Dist. LEXIS 1067 (E.D. Ky. Jan. 6, 2010) (Hood, J.). Plaintiff's complaint must be dismissed both because he did not exhaust administrative remedies and because federal courts are not subject to the FOIA.
Tyree v. Hope Village, Inc., No. 09-2445, 2009 WL 5173784 (D.D.C. Dec. 30, 2009) (Sullivan, J.). Even if plaintiff's complaint were construed as an action against the Department of Justice, the record shows that plaintiff has failed to follow applicable regulations for proper submission of a FOIA request. As such, he cannot be said to have exhausted his administrative remedies.
Brown v. FBI, No. 07-1931, 2009 WL 5102713 (D.D.C. Dec. 28, 2009) (Roberts, J.). The court finds that plaintiff's request for records pertaining to himself "did not constitute a proper FOIA request and did not trigger an agency's obligation to respond" where he sent his request to an office that is not specified in the agency's FOIA regulations and is not an FBI field office. However, notwithstanding the fact that plaintiff's request was improper, the FBI conducted a search, responded to plaintiff's request and provided him with administrative appeal rights. The court notes that plaintiff contends that he never received the FBI's response and that he submitted an appeal challenging the FBI's alleged non-response to his request. Acknowledging miscommunication between the parties, the court nevertheless concludes that because plaintiff "never properly initiated, let alone exhausted, the FOIA administrative process, he is not entitled to maintain a civil action" with respect to the FBI request. The court also finds that plaintiff failed to exhaust his administrative remedies with regard to a request sent to BOP. First, plaintiff submitted his request "to an office of the BOP which did not accept FOIA requests, [and therefore] he had not even initiated this FOIA request at the time he sent his appeal letter." Second, plaintiff failed to submit an administrative appeal of BOP's response before filing the instant civil action.
Manfredonia v. SEC, No. 08-1678, 2009 WL 4505510 (E.D.N.Y. Dec. 3, 2009) (Townes, J.). Plaintiff has failed to make valid FOIA requests that "compl[y] with the applicable regulations." Moreover, he does not allege that he filed administrative appeals of these requests. Though the "Court declines to hold that Plaintiff's failure to exhaust administrative remedies on his FOIA claims deprived the Court of subject matter jurisdiction," it will dismiss plaintiff's complaint for failure to state a claim.
Citizens for Responsibility & Ethics in Wash. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-633, 2009 WL 3859700 (D.D.C. Nov. 19, 2009) (Roberts, J.). Defendant properly informed plaintiff that it was extending by ten days the normal twenty business day deadline to respond to plaintiff's request due to the need to consult with another agency. Though plaintiff argues that the letter, dated March 31, 2009, was not postmarked until April 2, 2009, and was not received by plaintiff until April 6, 2009, the day plaintiff filed the instant complaint, there is no support for its contention "that the operative date of the Board's response should be determined by the date that CREW received it, as opposed to the date that the Board sent it." Thus, defendant "'responded' by placing in the mail written notice regarding its ten-day working extension of its deadline to respond to CREW's request before CREW filed this action." As a result, administrative exhaustion was required before filing suit. Because plaintiff did not exhaust, plaintiff's suit is dismissed.
Pearson v. DHS, No. 08-1885, 2009 WL 4016414 (N.D. Tex. Nov. 17, 2009) (Boyle, J.) (adoption of magistrate's recommendation). "Defendants provide specific evidence to show that Plaintiff did not submit proper FOIA requests, and that Defendants asked him on several occasions to accompany his application with appropriate information and paperwork. . . . They also provide evidence that Plaintiff did not administratively appeal any agency determinations." By contrast, "Plaintiff does not provide specific proof to show actual or constructive exhaustion of his FOIA remedies, dispute his failure to exhaust his FOIA remedies, or show a genuine issue of material fact." Because plaintiff has failed to exhaust his administrative remedies, summary judgment is granted in favor of defendants.
Pailes v. U.S. Peace Corps, No. 08-2214, 2009 WL 3535482 (D.D.C. Nov. 2, 2009) (Bates, J.). "A search of the Peace Corps' FOIA and Privacy Act databases yielded neither an outstanding FOIA or Privacy Act request nor a pending administrative appeal filed by plaintiff." Thus, plaintiff has failed to exhaust his administrative remedies and his FOIA claim is dismissed.
Hantzis v. Grantland, No. 08-2190, 2009 WL 3490757 (D.D.C. Oct. 30, 2009) (Kollar-Kotelly, J.). Because DEA acknowledged plaintiff's request before plaintiff added the FOIA claim to his lawsuit, plaintiff has not exhausted his administrative remedies. Thus, plaintiff's FOIA claim is dismissed without prejudice.
Petit-Frere v. U.S. Attorney's Office for the S. Dist. of Fla., No. 09-1732, 2009 WL 3319985 (D.D.C. Oct. 15, 2009) (Roberts, J.). Because defendant informed plaintiff prior to plaintiff's filing of his complaint that the agency was responding to his request, "plaintiff's claim to constructive exhaustion is incorrect." Since plaintiff has not exhausted his administrative remedies, his "lawsuit is premature and not ripe for adjudication in this forum."
Anderson v. Dep't of State, No. 09-569, 2009 WL 3286117 (D.D.C. Oct. 14, 2009) (Huvelle, J.) . Because plaintiff neither paid fees nor appealed the agency's denial of his fee waiver request, he has not exhausted his administrative remedies as to this issue.
Love v. FBI, No. 08-1802, 2009 WL 3193149 (D.D.C. Oct. 7, 2009) (Walton, J.). "There is no genuine dispute on the record before the Court that well before the plaintiff filed this civil action, that the FBI, EOUSA, and DEA had each responded acknowledging plaintiff's FOIA request and indicating either that it would process the request or that it had already done so. There also is no dispute that at the time this lawsuit was filed, the plaintiff had not pursued, let alone exhausted, his administrative remedies. Thus, the plaintiff's claim of constructive exhaustion is without merit, and his lawsuit was prematurely filed and therefore is not ripe for adjudication in this forum."
Latham v. DOJ, No. 08-1745, 2009 WL 3113242 (D.D.C. Sept. 30, 2009) (Roberts, J.). Though the DEA asserts that plaintiff was required to "provide a certificate of identity with an original notarized signature," relevant DOJ regulations do not require the use of a notary. Instead, plaintiff substantially complied with the regulations by certifying under penalty of perjury that he was the individual about whom records were being requested as well as by providing certain personal information about himself. However, plaintiff did not specify which DEA records system or office he believes maintains records on him. "The DEA demonstrates that plaintiff's failure to identify which record system to search or which office might maintain responsive records would require the agency to conduct searches agency-wide." As such, "[p]laintiff's FOIA request does not reasonably describe the records sought and, therefore, is not a proper FOIA request." Because plaintiff has not submitted a proper request, he cannot be said to have exhausted his administrative remedies. Plaintiff's failure to specify the amount of fees he would be willing to pay "is an insubstantial flaw." Under DOJ regulations, "[s]ubmission of the FOIA request itself is considered an agreement to pay up to $25.00 in search and duplication fees."
Truesdale v. DOJ, No. 08-1862, 2009 WL 3088824 (D.D.C. Sept. 29, 2009) (Friedman, J.). As to one of his requests, plaintiff produced a letter denying his administrative appeal of the agency's initial response, thereby establishing that he exhausted his administrative remedies.
Abou-Hussein v. Gates, No. 08-783, 2009 WL 3078876 (D.D.C. Sept. 25, 2009) (Leon, J.). As to portions of plaintiff's Complaint, "there is no factual allegation that he properly submitted an initial FOIA request for those documents. As a result, plaintiff has failed to exhaust his administrative remedies."
Penny v. DOJ, No. 08-1666, 2009 WL 3003248 (D.D.C. Sept. 21, 2009) (Urbina, J.). As to plaintiff's third-party requests, he did not provide the necessary privacy waivers until long after his administrative appeal of his initial request. Because defendant has not had sufficient time to "'authenticate the privacy waivers and begin its search for the third-party information,' . . . it would be premature at this juncture for the court to interfere with the agency's efforts to respond to the plaintiff's requests." Thus, this portion of plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.
McDermott v. Potter, No. 09-0776, 2009 WL 2971585 (W.D. Wa. Sept. 11, 2009) (Lasnik, J.). Plaintiff failed to exhaust his administrative remedies where he verbally requested a copy of a mail processing plan during a labor/management meeting, but never submitted a proper FOIA request for the documents.
Jones v. DOJ, No. 07-852, 2009 WL 2873172 (D.D.C. Sept. 9, 2009) (Kennedy, J.). "Plaintiff has neither committed to paying the fees [that he owes on his request] without conditions the court declines to accept, nor disputed the agency's aggregation decision or sought a fee waiver at the administrative level. Any dispute regarding the fees, the aggregation [of his multiple requests into one], or a fee waiver must first be raised and pursued to exhaustion in the administrative process before it will be entertained in a federal lawsuit."
Kroposki v. FAA, No. 08-01519, 2009 WL 2710223 (D. Conn. Aug. 26, 2009) (Thompson, J.). As to some of plaintiff's requests, he has failed to exhaust because he failed to allege that FAA withheld documents or that he appealed where FAA did withhold documents. However, plaintiff has sufficiently alleged that he exhausted his administrative remedies as to defendant's decision to charge search fees as to part of his request.
Calvert v. United States, No. 08-1659, 2009 WL 2584766 (D.D.C. Aug. 24, 2009) (Urbina, J.). The court finds that plaintiff exhausted his administrative remedies. Though plaintiff did not provide a privacy waiver for the subject of the request, DOJ regulations do not require the submission of such a waiver as a condition precedent to the processing of a FOIA request.
Rush v. FBI, No. 09-1557, 2009 WL 2516368 (D.D.C. Aug. 18, 2009) (Walton, J.). "Plaintiff has not permitted the administrative process to be completed by first obtaining an initial determination of a withholding." Instead, he filed this action after agreeing to pay estimated duplication fees and then submitting a "'follow-up request'" to defendant. Plaintiff's action is dismissed for failure to state a claim upon which relief can be granted.
Wells v. U.S. Dep't of Educ., No. 09-456, 2009 WL 2475434 (M.D. La. Aug. 12, 2009) (Brady, J.) (adopting magistrate's report and recommendation). Plaintiffs have not alleged that they exhausted their administrative remedies prior to filing suit.
Percy Squire Co. v. FCC, No. 09-428, 2009 WL 2448011 (S.D. Ohio Aug. 7, 2009) (Watson, J.). Although the FCC did not respond timely to plaintiff's FOIA request, it "cured the failure" when plaintiff "agreed to a phased response for the tens of thousands of pages of documents which are responsive to the FOIA request." Thus, plaintiff cannot be said to have exhausted its administrative remedies.
Feinman v. CIA, No. 08-2188 (D.D.C. Aug. 6, 2009) (Sullivan, J.). Plaintiff asserts that her failure to direct her administrative appeal to the proper location does not constitute failure to exhaust her administrative remedies. However, "the burden under the statute and regulations lies with the requester to properly submit the appeal for exhaustion so that any subsequent judicial review may commence." The requirement that agencies make a good faith effort to confer with requesters regarding factual or procedural problems with initial requests does not apply to administrative appeals. Thus, "Plaintiff fails to provide any support for the proposition that the FBI's receipt of an inadvertently faxed appeal triggered an affirmative duty to accept and forward the letter to the [Office of Information Policy]." Furthermore, there was no reason for the FBI to suspect that what it received was sent in error, as opposed to being a duplicate or courtesy copy of a properly filed administrative appeal. Though plaintiff has argued that the court should waive the exhaustion requirement in this case, doing so "would substantially undermine the purposes of exhaustion," depriving the agency of the "opportunity to correct its own mistakes [and] to compile a complete record. . . . Plaintiff has presented no evidence that a full administrative appeals process would be futile, and, by pointing out that she has already submitted a second, identical FOIA request to the agency, essentially concedes that she is not prejudiced by the application of the exhaustion requirement."
Booth v. IRS, No. 09-0637, 2009 WL 2031766 (E.D. Cal. July 9, 2009) (O'Neill, J.). Plaintiff mailed his request to an incorrect address, thereby failing to comply with IRS regulations for making a FOIA request. Thus, he has not exhausted his administrative remedies and cannot invoke the court's jurisdiction over his claim.
Evans v. McConnell, No. 08-97, 2009 WL 1913293 (W.D. Pa. July 2, 2009) (Gibson, J.) (adoption of magistrate's recommendation). Plaintiff did not send his FOIA request and administrative appeal to defendant's correct address, as listed in the Code of Federal Regulations, though he apparently did send his correspondence to an incorrect address provided in a FOIA response letter by the Department of the Army. Because of this, defendant never received plaintiff's request. As such, plaintiff cannot be said to have exhausted his administrative remedies, a condition precedent to his filing suit. Though in his appeal of the magistrate's ruling plaintiff claims to have now exhausted his administrative remedies, even if this is true, "exhaustion only after initiation of suit is not satisfactory."
Am. Small Bus.League v. SBA, No. 09-1098, 2009 WL 1916896 (N.D. Cal. July 1, 2009) (Chen, Mag. J.). SBA's response to plaintiff's administrative appeal was timely, having been made on the twentieth business day following its receipt of the appeal. The court further finds that the response was a sufficient determination of the appeal, holding in effect that the appeal was premature because SBA was still processing additional records. However, because these additional records were eventually released in full, any subsequent appeal by plaintiff would likely have been futile. Thus, defendant's motion to dismiss for failure to exhaust is denied.
Ye v. Holder, No. 09-104, 2009 WL 1649997 (D.D.C. June 12, 2009) (Huvelle, J.). "There is no competent evidence in the record to support [plaintiff's] contention" that defendant ever received plaintiff's FOIA request, and, by contrast, defendant has provided a sworn declaration that it received no such request. Thus, plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.
Rush v. FBI, No. 09-0955, 2009 WL 1438241 (D.D.C. May 21, 2009) (Collyer, J.). Because plaintiff filed his complaint before defendant's deadline to respond to his request lapsed, plaintiff failed to exhaust his administrative remedies.
Moore v. FBI, No. 06-697, 2009 WL 1351404 (W.D. Wis. May 13, 2009) (Crabb, J.). The court will not consider the FBI's actions with regard to plaintiff's other requests. As to one of these requests, plaintiff did not raise the issue in his complaint, so it is not properly before the court. As to another, the request was not even made until after plaintiff had filed the instant suit, thus, it is also not properly before the court. Moreover, plaintiff has not exhausted his administrative remedies as to this request.
