Citizens for Responsibility and Ethics in Washington v. Federal Election Commission , 839 F. Supp. 2d 17 ( 2011 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    CITIZENS FOR RESPONSIBILITY AND
    ETHICS IN WASHINGTON,
    Plaintiff,                                              Civil Action No. 11-951 (CKK)
    v.
    FEDERAL ELECTION COMMISSION,
    Defendant.
    MEMORANDUM OPINION
    (December 30, 2011)
    Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) filed this action
    under the Freedom of Information Act (“FOIA”), 
    5 U.S.C. § 552
    , to obtain certain records
    requested from Defendant, the Federal Election Commission (“FEC”). Presently before the
    Court is the FEC’s [4] Motion to Dismiss, or in the Alternative, for Summary Judgment, seeking
    to dismiss CREW’s complaint on two grounds: (1) Plaintiff’s claim is moot; and (2) for
    Plaintiff’s purported failure to exhaust its administrative remedies. CREW filed an [5]
    Opposition, and the FEC filed a [7] Reply. Having analyzed the pleadings, the record before the
    Court, and the relevant authorities, Defendant’s motion to dismiss for lack of subject matter
    jurisdiction is DENIED, and Defendant’s motion for summary judgment is GRANTED.
    I. BACKGROUND
    CREW is a non-profit corporation which describes its mission as “protecting the right of
    citizens to be informed about the activities of government officials and [] ensuring the integrity
    of government officials.” Compl. ¶ 4. The FEC is an independent agency of the United States
    Federal Government charged with administering the Federal Election Campaign Act of 1971.
    Def.’s Stmt. ¶ 1.1 On March 7, 2011, CREW submitted a FOIA request to the FEC seeking, in
    relevant part, the following records:
    •       All correspondence related to any and all FEC business between Commissioners
    Matthew S. Peterson, Caroline C. Hunter, or Donald F. McGhan II and any
    individual or entity outside of the FEC from the date each commissioner took
    office to the present;
    •       All calendars, agendas, or other recordations of the schedules of Commissioners
    Peterson, Hunter, and McGhan;
    •       All written ex parte communications delivered to an FEC ethics officer or
    Designated Agency Official by Commissioners Peterson, Hunter, and McGhan or
    by someone acting on their behalf; and
    •       All statements setting forth the substance and circumstances of any oral ex parte
    communication prepared by any of these commissioners or by someone acting on
    their behalf and delivered to an ethics official.
    Pl.’s Ex. 1 at 1. The request indicated “CREW welcomes the opportunity to discuss with you
    whether and to what extent this request can be narrowed or modified to better enable the FEC to
    process it within the FOIA’s deadlines.” 
    Id. at 2
    .
    The day after it received the request, the FEC emailed CREW, acknowledging receipt of
    the request, and granting CREW’s application for a fee waiver. Def.’s Stmt. ¶ 4. Though certain
    immaterial details of the parties’ communications remain in dispute, the parties do not dispute
    that between March 9 and March 18, 2011, the parties agreed that (1) CREW would allow the
    FEC to exclude certain documents from its initial search for responsive documents; and (2) the
    FEC would produce documents on a rolling basis. See Resp. Stmt. ¶¶ 4-8. On March 29, 2011,
    1
    In most instances the Court shall cite only to Defendant’s Statement of Material Facts
    (“Def.’s Stmt.”) unless a statement is contradicted by the Plaintiff, in which case the Court may
    cite Plaintiff’s Response to the Defendant’s Statement of Material Facts (“Resp. Stmt.”). The
    Court shall also cite directly to evidence in the record, where appropriate.
    2
    CREW sent the FEC a letter clarifying the scope of CREW’s request. Rappaport Decl. ¶ 8. The
    parties continued to correspond regarding the scope of the request through at least April 4, 2011.
    See Pl.’s Ex. C at 2. On May 4, 2011, the FEC informed CREW that it had just received the first
    set of potentially responsive documents from its searches, was still performing searches, and was
    reviewing thousands of potentially relevant documents. Def.’s Stmt. ¶ 10; Rappaport Decl. ¶ 10.
    CREW contends the FEC represented it thought it would be able to produce the first set of
    responsive documents within two weeks. Resp. Stmt. ¶ 10.
    CREW filed its Complaint on May 23, 2011. Def.’s Stmt. ¶ 11. The FEC produced its
    first batch of responsive documents on June 15, 2011. 
    Id. at ¶ 12
    ; Pl.’s Ex. B (06/15/11 Ltr K.
    Higginbothom to A. Rappaport). The initial production was accompanied by a letter informing
    CREW that
    The FEC is continuing to process your request and has produced with this letter
    an initial round of responsive records. You will continue to receive additional
    responsive records on a rolling basis. Upon the agency’s final production of
    records, you will receive a decision letter that will include information regarding
    your appeal rights. Today’s letter does not constitute a final agency decision, and
    thus is not subject to appeal.
    Pl.’s Ex. B at 2. The FEC’s second production on June 21, 2011 contained a similar disclaimer,
    indicating the FEC expected to produce additional documents and that the production was not an
    appealable agency decision. Pl.’s Ex. C at 2. The FEC completed its production of responsive
    documents on June 23, 2011, and enclosed a letter outlining redactions and documents withheld
    under various FOIA exemptions. Pl.’s Ex. D at 2-3. The letter further instructed CREW that it
    could appeal any adverse determination, that any appeal must be in writing, and that it must
    comply with the guidelines set forth in 
    11 C.F.R. § 4.8
    . 
    Id. at 3
    . In total, the FEC produced 835
    pages of responsive documents between June 15 and June 23, 2011.
    3
    II. LEGAL STANDARD
    The FEC styles its motion as a motion to dismiss pursuant to Federal Rule of Civil
    Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56. The FEC’s
    argument that CREW’s claim is moot is correctly considered a motion to dismiss for lack of
    subject matter jurisdiction under Rule 12(b)(1). In determining whether there is subject matter
    jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced
    in the record, or the complaint supplemented by undisputed facts plus the court's resolution of
    disputed facts.” Coal. for Underground Expansion v. Mineta, 
    333 F.3d 193
    , 198 (D.C. Cir.
    2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 
    402 F.3d 1249
    , 1253
    (D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding
    whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage,
    counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality
    to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S.
    Parole Comm'n, 
    429 F.3d 1098
    , 1106 (D.C. Cir. 2005). However, it remains the Plaintiff's
    burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm
    Bureau v. EPA, 
    121 F. Supp. 2d 84
    , 90 (D.D.C. 2000). “[A] plaintiff['s] factual allegations in the
    complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a
    12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 
    503 F. Supp. 2d 163
    , 170 (D.D.C. 2007) (internal quotation marks omitted).
    In support of its second argument, failure to exhaust administrative remedies, both parties
    rely on materials outside the pleadings thus Defendant’s motion will be treated as a motion for
    summary judgment. Rule 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside
    4
    the pleadings are presented to and not excluded by the court, the motion must be treated as one
    for summary judgment under Rule 56.”). “The court shall grant summary judgment if the
    movant shows that there is no genuine dispute as to any material fact and the movant is entitled
    to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    A party asserting that a fact cannot be or is genuinely disputed must support the
    assertion by:
    (A) citing to particular parts of materials in the record, including depositions,
    documents, electronically stored information, affidavits or declarations,
    stipulations (including those made for purposes of the motion only), admissions,
    interrogatory answers, or other materials); or
    (B) showing that the materials cited do not establish the absence or presence of a
    genuine dispute, or that an adverse party cannot produce admissible evidence to
    support the fact.
    Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to
    properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
    consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When
    considering a motion for summary judgment, the court may not make credibility determinations
    or weigh the evidence; the evidence must be analyzed in the light most favorable to the
    nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,
    Inc., 
    477 U.S. 242
    , 255 (1986). “If material facts are at issue, or, though undisputed, are
    susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,
    
    571 F.3d 62
    , 66 (D.C. Cir. 2009) (citation omitted).
    The mere existence of a factual dispute, by itself, is insufficient to bar summary
    judgment. See Liberty Lobby, 
    477 U.S. at 248
    . “Only disputes over facts that might affect the
    outcome of the suit under the governing law will properly preclude the entry of summary
    judgment.” 
    Id.
     For a dispute about a material fact to be “genuine,” there must be sufficient
    5
    admissible evidence that a reasonable trier of fact could find for the nonmoving party. 
    Id.
     The
    Court must determine “whether the evidence presents a sufficient disagreement to require
    submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
    
    Id. at 251-52
    . “If the evidence is merely colorable, or is not sufficiently probative, summary
    judgment may be granted.” 
    Id. at 249-50
     (internal citations omitted). Conclusory assertions
    offered without any factual basis in the record cannot create a genuine dispute. See Ass’n of
    Flight Attendants-CWA v. U.S. Dep’t of Transp., 
    564 F.3d 462
    , 465-66 (D.C. Cir. 2009).
    III. DISCUSSION
    A.      Mootness
    “Article III of the Constitution restricts the federal courts to deciding only ‘actual,
    ongoing controversies,’ and a federal court has no ‘power to render advisory opinions [or] . . .
    decide questions that cannot affect the rights of litigants in the case before them.’” Nat'l Black
    Police Ass'n v. District of Columbia, 
    108 F.3d 346
    , 349 (D.C. Cir. 1997) (internal citations
    omitted) (quoting Honig v. Doe, 
    484 U.S. 305
    , 317 (1988) and Preiser v. Newkirk, 
    422 U.S. 395
    ,
    401 (1975)). The case or controversy requirement “means that, throughout the litigation, the
    plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant
    and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 
    523 U.S. 1
    , 7
    (1998) (internal quotation marks omitted). “[E]ven where litigation poses a live controversy
    when filed, . . . [this] court [must] refrain from deciding it if ‘events have so transpired that the
    decision will neither presently affect the parties’ rights nor have a more-than-speculative chance
    of affecting them in the future.” Nat’l Black Police Ass’n, 
    108 F.3d at 349
     (quoting Clarke v.
    United States, 
    915 F.2d 699
    , 701 (D.C. Cir. 1990) (en banc)).
    6
    In this case, the FEC argues that its production of responsive documents in June 2011
    mooted Plaintiff’s claim for relief. Plaintiff argues that the FEC has failed to meet its burden to
    show that the search performed was adequate and that the agency’s invocation of various FOIA
    exemptions was proper. Plaintiff misunderstands the FEC’s argument.2 The FEC is not moving
    to dismiss Plaintiff’s case on the basis of the substance of its response to CREW’s request; rather
    the FEC argues its production of any documents in response to the request moot’s CREW’s
    complaint, which sought to compel some response to CREW’s request.
    The FEC’s argument has some intellectual appeal, but is ultimately unpersuasive.
    CREW filed suit before the FEC had produced (or refused to produce) any documents, which
    would seemingly limit Plaintiff to a cause of action under § 552(a)(6)(A)(i) and/or §
    552(a)(6)(C) challenging the timeliness of the agency’s response. Although Plaintiff’s
    Complaint purports to bring a claim under § 552(a)(3)(A), Defendant implicitly argues that a
    claim under this section would not have been ripe at the time Plaintiff filed suit because the
    agency had not yet produced or withheld documents such that the Court could evaluate the
    adequacy of the agency’s response. It does not appear that courts inside or outside of this
    Circuit take such a formalistic approach to complaints filed pursuant to the FOIA. See Edmonds
    v. FBI, 
    417 F.3d 1319
     (D.C. Cir. 2005) (upholding attorney’s fee award in FOIA case filed in
    order to compel expedited production of documents and resolved on motion for summary
    judgment regarding adequacy of the records eventually produced by the FBI). In Voinche v.
    2
    The Court does not fault Plaintiff for this misunderstanding. All of the cases cited in
    Defendant’s Motion involved challenges to the substantive response to FOIA requests. It was
    not until Defendant’s Reply that the nature of the mootness claim became clear. See Def.’s
    Reply at 2-4.
    7
    FBI, 
    999 F.2d 962
     (5th Cir. 1993), on which the FEC primarily relies in its Reply, the underlying
    complaint challenged both the timeliness of the FBI’s response (as no documents were produced
    prior to plaintiff filing suit) and the adequacy of the records produced. Though the Voinche
    court eventually concluded that the substantive challenge to the FBI’s response was barred by
    plaintiff’s failure to exhaust administrative remedies, the fact that the court reached the
    exhaustion issue supports the notion that courts do not routinely construe complaints to only
    challenge an agency’s timeliness even if filed before the agency produces any responsive
    records. The FEC is correct that to the extent that Plaintiff’s Complaint challenged the
    timeliness of their production, it is now moot. However, the Court is not willing to dismiss the
    Complaint in its entirety, because the Complaint does assert a substantive challenge to the
    agency’s response under § 552(a)(3)(A). See Compl. ¶ 26. Therefore Defendant’s motion to
    dismiss for lack of subject matter jurisdiction is denied.
    B.      Exhaustion of Administrative Remedies
    The bulk of the FEC’s motion is dedicated to the argument that this case should be
    dismissed because CREW failed to exhaust its administrative remedies before filing suit. As
    explained below, the FEC provided an adequate determination in response to CREW’s FOIA
    request prior to CREW filing suit, thus CREW was required to exhaust its administrative appeals
    within the FEC before challenging the adequacy of the FEC’s response in this Court.
    1.      Exhaustion of Administrative Remedies and Constructive Exhaustion
    Exhaustion of administrative remedies in the context of the FOIA “is not jurisdictional
    because the FOIA does not unequivocally make it so.” Hidalgo v. FBI, 
    344 F.3d 1256
    , 1258
    (D.C. Cir. 2003). Nevertheless, this Circuit has held that failure to exhaust administrative
    8
    remedies still “precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular
    administrative scheme’ support such a bar.” 
    Id. at 1258-59
     (quoting Oglesby v. U.S. Dep’t of
    Army, 
    920 F.2d 57
    , 61 (D.C. Cir. 1990). In this case, CREW argues that it “constructively
    exhausted” its remedies because the FEC failed to respond to its request within the twenty day
    window prescribed in the statute. The “constructive exhaustion” provision on which Plaintiff
    relies, § 552(a)(6)(C)(i), provides in relevant part:
    Any person making a request to any agency for records under paragraph (1), (2),
    or (3) of this subsection shall be deemed to have exhausted his administrative
    remedies with respect to such request if the agency fails to comply with the
    applicable time limit provisions of this paragraph.
    (Emphasis added); see also Judicial Watch, Inc. v. Rossotti, 
    326 F.3d 1309
    , 1310 (D.C. Cir.
    2003). Section 552(a)(6)(A)(i) provides the relevant time limit, requiring the responding agency
    to
    determine within 20 days (excepting Saturdays, Sundays, and legal public
    holidays) after the receipt of any such request whether to comply with such
    request and shall immediately notify the person making such request of such
    determination and the reasons therefor, and of the right of such person to appeal
    to the head of the agency any adverse determination.
    (Emphasis added). When an agency responds to a FOIA request after the twenty-day window
    has passed but before the requesting party files suit, the exhaustion requirement is renewed.
    Judicial Watch, 
    326 F.3d at 1310
    ; see also Oglesby, 
    920 F.2d at 64
     (“Once the agency responds
    to a FOIA request, the requester must exhaust his administrative remedies before seeking judicial
    review.”). Constructive exhaustion is not intended to supplant the agency’s authority under the
    FOIA with premature judicial oversight. See Lowe v. DEA, No. 06-1133, 
    2007 WL 2104309
    , at
    *4 (D.D.C. July 22, 2007) (citing Oglesby, 
    920 F.2d at
    64 n. 8).
    9
    2.      Sufficiency of a “Determination” under the FOIA
    The entirety of Plaintiff’s opposition on this point rests on the argument that a response
    from an agency is not a “determination”—for purposes complying with § 552(a)(6)(A)(i) or
    triggering the renewed duty to exhaust administrative remedies—unless it is the final substantive
    response, including a notice of the requesting party’s right to appeal. Under Plaintiff’s view,
    notice that the agency is processing the request and intends to produce responsive documents, as
    the FEC provided in this case, is inadequate and the requesting party is entitled to invoke
    constructive exhaustion after the twenty day period has expired. However, neither the plain text
    of the statute nor the case law in this Circuit supports Plaintiff’s construction.
    First, Plaintiff purports to take a “plain language approach” to § 552(a)(6)(A)(i) by
    relying not on the text of the statute, but on the “Guide to the Freedom of Information Act,”
    published by the Department of Justice. Pl.’s Opp’n at 18. Without further elaboration, the
    Guide concludes “[a]n agency response that merely acknowledges receipt of a request does not
    constitute a ‘determination’ under the FOIA in that it neither denies records nor grants the right
    to appeal the agency’s determination.” U.S. Dep’t of Justice, Guide to the Freedom of
    Information Act, 743 (2009 ed.), available at http://www.justice.gov/oip/foia_guide09.htm.
    Besides the curious basis for this conclusion cited in the Guide (a single district court case from
    the District of Alaska), the Guide fails to elaborate on what would amount to a “determination”
    under the FOIA. The plain text of the actual statute indicates three things are required in the
    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. Relatedly, § 552(a)(6)(C)(i) requires that “[u]pon any
    10
    determination by an agency to comply with a request for records, the records shall be made
    promptly available to such person making such request,” would guard against any abuse by
    responding agencies. Clearly, 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. Rather, 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.” In this case, the
    FEC did more than acknowledge receipt of Plaintiff’s request before it filed suit. CREW
    concedes that within two days of transmitting the request to the FEC, the FEC agreed to produce
    responsive documents on a rolling basis. Rappaport Decl. ¶ 3. The FEC was also reasonably
    prompt in producing documents to CREW: the parties did not finalize the scope of CREW’s
    request until April 4, 2011 (Rappaport Decl. ¶¶ 8-9; Pl.’s Ex. C at 2); the FEC performed the
    relevant searches and began reviewing potentially responsive documents within four weeks
    (Rappaport Decl. ¶ 9); and the FEC produced the responsive documents six weeks later (Pl.’s
    Exs. C, D). Ten 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 of Appeals confirmed this is the proper interpretation of the FOIA; 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.” Oglesby, 
    920 F.2d at 65
    . Several other courts have found
    11
    that the plaintiffs failed to constructively exhaust their administrative remedies, even where the
    responding agencies provided no indication of its intent to comply prior to the plaintiffs filing
    suit, as the FEC did here. In Love v. FBI, 
    660 F. Supp. 2d 56
    , the plaintiff sent FOIA requests to
    various federal agencies, including the Executive Office of the United States Attorney and the
    Drug Enforcement Agency. The EOUSA responded that it would comply with the request. 
    Id. at 57
    . The DEA indicated it would “process” the request, but that there would be some delay in
    responding. 
    Id. at 58
    . Neither agency produced any documents before the plaintiff filed suit. 
    Id.
    Judge Reggie B. Walton concluded that the responses provided precluded the plaintiff from
    asserting constructive exhaustion, and therefore granted summary judgment in favor of the
    defendants. 
    Id. at 59-60
    . The Court finds Judge Walton’s reasoning in Love persuasive.
    Similarly, in Percy Squire Co., LLC v. FCC, the court found that the FCC cured its initial
    failure to timely respond to plaintiff’s FOIA request when it agreed to a “phased response for the
    tens of thousands of pages of documents” which were responsive to the request, and thus
    constructive exhaustion was not applicable. No. 2:09-cv-428, 
    2009 WL 2448011
    , at *4-5 (S.D.
    Ohio Aug. 7, 2009); see also Cabreja v. U.S. Citizenship and Immigration Serv., No. 08-1992,
    
    2008 WL 4933649
    , at *1, n.1 (D.D.C. Nov. 19, 2008) (holding plaintiff had not constructively
    exhausted administrative remedies where the USCIS “acknowledged the request, assigned a
    project number, and informed [plaintiff] that his request had been assigned to the ‘complex’
    track”); Bonner v. Soc. Sec. Admin., 
    574 F. Supp. 2d 136
    , 137-39 (D.D.C. 2008) (noting “there is
    no dispute” that plaintiff failed to exhaust administrative remedies with respect to request to,
    among other defendants, the VA, which sent plaintiff letters indicating it had received his request
    and it was in the queue for processing). Cf. In Defense of Animals v. NIH, 
    543 F. Supp. 2d 83
    ,
    12
    96-97 (D.D.C. 2008) (finding plaintiff constructively exhausted its remedies where “Defendants
    did not indicate their decision to comply or not comply with Plaintiff's entire request until after
    Plaintiff filed suit”).
    Plaintiff argues the weight of controlling case law requires the Court to find it
    constructively exhausted its administrative remedies. However, Plaintiff does not cite any case
    in this Circuit (or any other court for that matter), that supports its reading of the constructive
    exhaustion requirement. Rather, Plaintiff attempts to distinguish two cases underlying the case
    Defendant cites. Specifically, Plaintiff argues the Court should reject the holding in Petit-Frere
    v. U.S. Attorney’s Office for the Southern District of Florida, 
    664 F. Supp. 2d 69
     (D.D.C. 2009).
    In Petit-Frere, the plaintiff submitted a FOIA request to the United States Attorney’s Office in
    Miami in June 2008. The Executive Office for the United States Attorney received the
    forwarded response from the US Attorney’s Office, and responded to plaintiff on August 28,
    2008 indicating that it could take approximately nine months to process the request. 
    Id. at 70
    .
    Ten months later, having failed to receive any further response, the plaintiff appealed to the
    Department of Justice’s Office of Information and Privacy (“OIP”). The OIP responded that
    since there was no adverse determination, there was nothing to review on appeal. 
    Id.
     The
    plaintiff then filed suit. Judge Richard W. Roberts concluded that since the EOUSA submitted a
    response in August 2008, plaintiff was required to exhaust his administrative remedies before
    filing suit, and dismissed the case. 
    Id. at 71-72
    .
    Plaintiff’s primary argument is that Judge Roberts improperly relied on two cases in
    reaching the decision in Petit-Frere: Spannaus v. U.S. Department of Justice, 
    824 F.2d 52
     (D.C.
    Cir. 1987), and Oglesby. To be fair, this Court cannot find a principled way to distinguish the
    13
    holding in Petit-Frere from Spannaus, which found that a letter acknowledging receipt of a
    FOIA request and indicating the request would be forwarded to FBI Headquarters was not a
    “determination” under § 552(a)(6)(A)(i). The response from the EOUSA in Petit-Frere did little
    more as it simply acknowledged the request and indicated the possible time frames for
    processing. See Petit-Frere v. U.S. Atty’s Office for the So. Dist. of Fla, No. 09-1732, Compl.
    Ex. C. However, the Court of Appeals in Oglesby indicated it was still an open question as to
    whether a response indicating the agency was “processing” a claim was a sufficient
    determination to satisfy the time limits provided in FOIA. See 
    920 F.2d at 69
    . The Oglesby
    court did not resolve the issue because in the case before it, the FBI responded further with an
    final adverse decision before the plaintiff filed suit, thus renewing plaintiff’s obligation to
    exhaust administrative remedies. Ultimately, the adequacy of a response indicating a request is
    being “processed” is irrelevant to this case, as the FEC indicated it would in fact produce records
    in response to CREW’s request. Thus the FEC provided the response that the Oglesby court
    noted is a sufficient “determination” under the FOIA to trigger the administrative exhaustion
    requirement, and the Court need not rely on Petit-Frere to reach this conclusion.
    3.      Open America Stays and Exhaustion
    Plaintiff next argues that Congress intended to allow direct access to the courts in the
    face of agency delay. As noted above, § 552(a)(6)(C)(i) provides that if an agency “fails to
    comply with the applicable time limit[s],” the requesting party is deemed to have constructively
    exhausted its administrative remedies. This section continues, stating “[i]f the Government can
    show exceptional circumstances exist and that the agency is exercising due diligence in
    responding to the request, the court may retain jurisdiction and allow the agency additional time
    14
    to complete its review of the records.” The Court of Appeals in Open America v. Watergate
    Special Prosecution Force, 
    547 F.2d 605
     (D.C. Cir. 1976) interpreted the phrase “exceptional
    circumstances” to include agency backlog in processing FOIA requests, so long as the agency
    shows it is “exercising due diligence” in processing the backlogged requests. 
    Id. at 616
    .
    Curiously, Plaintiff never cites § 552(a)(6)(C)(i) in support of this argument, and seems
    to believe that the stays are a creation of the Judiciary. See Pl.’s Opp’n at 18. In any case,
    Plaintiff contends that requiring exhaustion in cases such as this “would deprive this judicially
    sanctioned approach of any utility.” Id. This is incorrect. Under 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 it is “processing” the request, but
    does not indicate whether the agency will comply.3 The Court is not unsympathetic to the
    Plaintiff’s concern that this interpretation could theoretically lead to the situation where, as in
    Petit-Frere, the agency failed to produce documents for nearly a year, yet the requesting party
    was still unable to seek judicial intervention. The Court notes 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.
    Furthermore, the rationale underlying the exhaustion requirement itself supports
    requiring CREW to exhaust its remedies in this case.
    3
    Under Petit-Frere, the “processing” response would require administrative exhaustion,
    but the Court does not go so far in this case because the FEC’s response indicated it would
    comply with the request, not that the request was merely being “processed.”
    15
    Exhaustion is generally required as a matter of preventing premature interference
    with agency processes, so that the agency may function efficiently and so that it
    may have an opportunity to correct its own errors, to afford the parties and the
    courts the benefit of its experience and expertise, and to compile a record which is
    adequate for judicial review.
    Weinberger v. Salfi, 
    422 U.S. 749
    , 765 (1975). Exhaustion also plays an important role in
    ensuring consistency in responding to FOIA requests. As the Court of Appeals explained:
    Allowing a FOIA requester to proceed immediately to court to challenge an
    agency's initial response would cut off the agency’s power to correct or rethink
    initial misjudgments or errors. The extra several weeks consumed in processing
    an administrative appeal to completion must surely have been thought a tolerable
    price to ask from a requester who has already chosen to wait for a response from
    the agency. If there is to be any uniformity in FOIA interpretations within a given
    agency, and if agencies are to have an opportunity to revise their responses in
    light of intervening responses to the same FOIA request by other agencies, such
    uniformity can best be afforded through the administrative appeal process.
    Oglesby, 
    920 F.2d at 133-34
    . Thus, a finding of constructive exhaustion is not appropriate
    where it would be “contrary to orderly procedure and good administration and unfair to those
    who are engaged in the tasks of administration to decide an issue which [an agency] never had a
    fair opportunity to resolve prior to being ushered into litigation.” Lowe, 
    2007 WL 2104309
    , at
    *4 (quoting Dettmann v. U.S. Dep’t of Justice, 
    802 F.2d 1472
    , 1476 (D.C. Cir. 1986)) (internal
    quotation marks omitted). Here, the FEC has not had the opportunity to address any of the
    objections CREW lodges to scope of the production, adequacy of the searches, or claimed
    exemptions and withheld documents. Providing the FEC the opportunity to review CREW’s
    objections through the administrative appeals process would among other things allow the
    agency time to correct any errors alleged by CREW, and create a full record for the Court to
    review should CREW seek additional review of the FEC’s decision. Requiring exhaustion in
    this case will only further the ends of justice.
    16
    In sum, both the text of the relevant provisions and case law show the FEC’s response
    prior to May 23, 2011, was sufficient to require CREW to exhaust its administrative remedies
    within the FEC before filing suit. None of Plaintiff’s arguments to the contrary are persuasive.
    The FEC provided notice within two days that it intended to comply with CREW’s request, and
    worked diligently with CREW to clarify and narrow the scope of the requests, then to perform
    searches, to review, and ultimately to produce responsive documents. This was a sufficient
    response as required by the FOIA, and thus CREW cannot claim to have constructively
    exhausted its administrative remedies.
    IV. CONCLUSION
    For the reasons stated above, Defendant’s motion to dismiss for lack of subject matter
    jurisdiction is DENIED. Although Plaintiff’s claims regarding the timeliness of the FEC’s
    response to its FOIA request were rendered moot by the agency’s response, the Court retains
    subject matter jurisdiction over the issue of the adequacy of the FEC’s response. Defendant’s
    motion for summary judgment for failure to exhaust administrative remedies is GRANTED.
    Defendant provided an adequate “determination” prior to Plaintiff filing suit, and thus Plaintiff is
    required to exhaust its administrative remedies within the FEC before challenging the adequacy
    of the FEC’s response in this Court. Therefore the Court shall dismiss the case in its entirety.
    An appropriate Order accompanies this Memorandum Opinion.
    /s/
    COLLEEN KOLLAR-KOTELLY
    United States District Judge
    17
    

Document Info

Docket Number: Civil Action No. 2011-0951

Citation Numbers: 839 F. Supp. 2d 17, 2011 WL 6880679, 2011 U.S. Dist. LEXIS 149672

Judges: Judge Colleen Kollar-Kotelly

Filed Date: 12/30/2011

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (24)

Wright v. Foreign Service Grievance Board , 503 F. Supp. 2d 163 ( 2007 )

In Defense of Animals v. National Institutes of Health , 543 F. Supp. 2d 83 ( 2008 )

Hidalgo v. Federal Bureau of Investigation , 344 F.3d 1256 ( 2003 )

Carl Oglesby v. The United States Department of the Army , 920 F.2d 57 ( 1990 )

Preiser v. Newkirk , 95 S. Ct. 2330 ( 1975 )

Petit-Frere v. U.S. Attorney's Office for the S.D. , 664 F. Supp. 2d 69 ( 2009 )

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Open America v. The Watergate Special Prosecution Force , 547 F.2d 605 ( 1976 )

Judicial Watch, Inc. v. Rossotti, Charles , 326 F.3d 1309 ( 2003 )

Moore v. Hartman , 571 F.3d 62 ( 2009 )

Coalition for Underground Expansion v. Mineta , 333 F.3d 193 ( 2003 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

American Farm Bureau v. United States Environmental ... , 121 F. Supp. 2d 84 ( 2000 )

Bonner v. Social Security Admin. , 574 F. Supp. 2d 136 ( 2008 )

David A. Clarke v. United States , 915 F.2d 699 ( 1990 )

Settles v. United States Parole Commission , 429 F.3d 1098 ( 2005 )

Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug ... , 402 F.3d 1249 ( 2005 )

Edward Spannaus v. U.S. Department of Justice , 824 F.2d 52 ( 1987 )

National Black Police Association v. District of Columbia , 108 F.3d 346 ( 1997 )

Spencer v. Kemna , 118 S. Ct. 978 ( 1998 )

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