be allowed "to complete its disclosure process before courts step in." Ogelsby, 920 F.2d at 65. Indeed, "allowing a FOIA requester to proceed to court to challenge an agency's initial response [under these circumstances] would cut off the agency's power to correct or rethink initial misjudgments or errors." Id. at 64.
In addition, the Court finds the notice provided by the FCC in the instant-case wholly satisfactory under the statute. Cf. Id. at 67 (response letter "merely" informed requester that he could call the agency for further information). As set forth above, the response letter gave the Plaintiff notice of his right to secure further agency review of the adverse determination, of the manner in which he could exercise that right, of the time limits for filing such a request, and of the regulatory provisions containing general procedures pertaining to review applications. This information more than adequately fulfilled the purposes behind the notice provision and exhaustion requirement, as the latter was explained in Ogelsby.
Moreover, the Plaintiff's exhaustion of administrative remedies in a prior suit against the FCC belie his claim here. Kay v. FCC, 867 F. Supp. 111 (D.D.C. 1994). In that case, the FCC's notification letter of March 22, 1994 similarly advised that the Plaintiff "may file an application for review of this decision with the Commission's General Counsel within 30 days in accordance with Commission Rule 0.461(i), 47 C.F.R. § 0.461(i)." Letter from W. Riley Hollingsworth, Deputy Chief, Licensing Division, to Plaintiff's counsel, Defendant's Reply, Attach. 1, at 3. By letter dated April 4, 1994, the Plaintiff submitted, through the same counsel representing him in the instant action, an application for review. Defendant's Reply, Attach. 2. Moreover, the Complaint in that earlier action, filed with this Court on May 19, 1994, characterizes the April 4, 1994 letter as an "appeal." Defendant's Reply, Attach. 3, at 3. Thus, through his prior filings with this Court, the Plaintiff has demonstrated a full understanding of the FCC's appellate procedures. Under these circumstances, the Plaintiff's claim that the FCC's response letter at issue was inadequate to function as notification of his right to "appeal to the head of the agency" under 5 U.S.C. § 552(a)(6)(A) borders on the frivolous.
In sum, the Court finds that "the policies underlying the exhaustion requirement would be served by applying the principle here." Dettmann, 802 F.2d at 1472 n.8. Because the Plaintiff failed to exhaust his administrative remedies, the Court lacks subject matter over the instant suit, and the case must be dismissed. The Court further finds that the FCC's response letter did "qualify as notice to [the Plaintiff] of his right to appeal the negative reference to his inquiry." Oglesby 920 F.2d at 67. To hold-otherwise 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 the [FCC] never had a fair opportunity to resolve prior to being ushered into litigation." Dettmann, 802 F.2d at 1476 n.8 (quoting United States v. Tucker Truck Lines, 344 U.S. 33, 36-37, 97 L. Ed. 54, 73 S. Ct. 67 (1952)).
Moreover, because the time period within which the Plaintiff might have filed his administrative appeal has long since expired, the case shall be dismissed with prejudice. See 47 C.F.R. § 0.461(i) ("The application shall be filed within 30 days after the date of the written ruling by the custodian of records . . . ."). Cf. Ogelsby, 920 F.2d at 65 (allowing appellant to pursue appeals before the administrative agencies regardless of the expiration of the agencies' appeal deadlines in view of prior uncertainty regarding the precise requirements of FOIA exhaustion where an agency responds to a request after expiration of the statutory time period but before filing suit). The Court concludes that, pursuant to the statute, its regulations, the relevant case law, and under the FCC's response letter dated October 11, 1994, the Plaintiff was placed on clear notice of the mandatory nature of an administrative appeal in FOIA cases. See Ogelsby, 920 F.2d at 65 ("In future cases foregoing an administrative appeal will preclude the requester from ever bringing suit on that request because the individual will not have exhausted his administrative remedies . . . .").
Accordingly, it is, by the Court, this 10 day of January, 1995,
ORDERED that the Defendant's Motion to Dismiss shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED, with prejudice, from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE