The opinion of the court was delivered by: Huvelle, District Judge.
Plaintiff Judicial Watch, Inc. has sued the United States
Naval Observatory under the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552, alleging that defendant failed to timely respond
to its request for expedited processing of its request for
documents and failed to disclose responsive documents. Defendant
has moved to dismiss on the grounds that plaintiff has failed to
exhaust administrative remedies. For the reasons discussed
below, the Court will dismiss plaintiff's complaint for lack of
subject matter jurisdiction.
Plaintiff submitted a request for documents pursuant to FOIA
to defendant on May 22, 2001 by facsimile and May 23, 2001 by
certified mail. Compl. ¶ 5. Plaintiff requested:
1. The guest list and/or access roster for any and
all persons attending the reception at Vice
President Cheney's residence on the evening of
Monday, May 21, 2001.
2. The names of all non-US government personnel who
entered the grounds of the U.S. Naval Observatory
between the hours of 4:00 p.m. Monday, May 21, 2001
and 3:00 a.m. Tuesday, May 22, 2001.
3. Communications with the Republican National
Committee ("RNC"), its directors, officers,
employees, agents or volunteers concerning the
reception held at Vice President Cheney's residence
on the evening of Monday, May 21, 2001.
Id. Plaintiff also requested expeditious handling of its FOIA
request pursuant to 32 C.F.R. § 701.8(f)(5). Id. ¶ 6.
Defendant did not respond to plaintiffs request for expedited
handling within 10 days as required by 32 C.F.R. § 701.8(f)(5),
which also provides that failure to respond to a request for
expedited processing in a timely manner shall be subject to
judicial review. Plaintiff filed this lawsuit on June 11, 2001.
Defendant responded to plaintiff's FOIA request by letter dated
June 19, 2001, and stated that after a diligent search, it could
not locate any responsive documents. Def. Mot. Ex. 2 at 1. The
letter also informed plaintiff of its right to appeal in order
to challenge the adequacy of the search within 60 calendar days.
Id. at 2.
Defendant has moved to dismiss arguing that it responded on
time to plaintiffs request for documents and that plaintiffs
failure to exhaust administrative remedies with respect to the
substantive response deprives this Court of jurisdiction.
Plaintiff responds that defendant's failure to respond to its
request for expedited processing in a timely fashion amounts to
a constructive exhaustion of administration remedies and
therefore entitles it to file suit without actually exhausting
its administrative remedies.
It is well settled that full and timely exhaustion of
administrative remedies is a prerequisite to judicial review
under FOIA. See, e.g., Spannaus v. U.S. Dep't of Justice,
824 F.2d 52, 58 (D.C.Cir. 1987) ("It goes without saying that
exhaustion of remedies is required in FOIA cases. As this court
has recently had occasion to state in the clearest of language,
`[e]xhaustion of such [administrative] remedies is required
under the Freedom of Information Act before a party can seek
judicial review.'") (citation omitted). Where plaintiff has
failed to exhaust its administrative remedies prior to filing
with the court, the case is subject to dismissal for lack of
subject matter jurisdiction.
Under 5 U.S.C. § 552(a)(6)(E)(iii), failure of an agency to
timely respond to a request for expedited processing is subject
to judicial review. However, FOIA also provides that "a district
court . . . shall not have jurisdiction to review an agency
denial of expedited processing of a request for records after
the agency has filed a complete response to the request."
5 U.S.C. § 552(a)(6)(E)(iv) (emphasis added). Therefore, while
plaintiff was entitled to file a lawsuit on June 11, 2001 for
review of defendant's failure to respond to its request for
expedited processing, because defendant has since provided a
complete response to the request for records, this Court no
longer has subject matter jurisdiction over the claim that
defendant failed to expedite processing of plaintiffs request.
The question remains whether the Court has jurisdiction over
plaintiffs claim that defendant has not conducted an adequate
search. The statutory provision allowing for judicial review of
a denial of a request for expedited processing, or failure to
respond to such a request, in no way alters or repeals the time
period for an agency's substantive determination of a request
for records, which is 20 business days after
receipt of such a request. See 5 U.S.C. § 552(a)(6)(A)(i). It
is undisputed that defendant responded to plaintiffs request for
documents within the allotted time period. In response,
plaintiff cites Spannaus for the proposition that "by
`deem[ing]' exhaustion to occur on expiration of the relevant
time limits, the statute provides for constructive exhaustion,
which permits early `accrual' of a cause of action in the
interests of timely disclosure. Once constructive exhaustion
occurs, any available administrative appeal — i.e., actual
exhaustion-becomes permissive in the sense in which the term is
used here; the requester may pursue it, but his failure to do so
does not bar a lawsuit." 824 F.2d at 58. While it is the case
that if an agency fails to respond to a request for documents
within the allotted time period, a plaintiff may file suit
without further administrative proceedings, that principle has
no applicability here, since defendant responded to plaintiffs
request within the 20 day time period.
Moreover, defendant's earlier failure to timely respond to the
request for expedited processing is not equivalent to
constructive exhaustion of administrative remedies as to the
request for documents.*fn1 The statute provides that "failure
by an agency to respond in a timely manner to [a request for
expedited processing] shall be subject to judicial review . . .
except that the judicial review shall be based on the record
before the agency at the time of the determination."
5 U.S.C. § 552(a)(6)(E)(iii). It cannot be read to provide that such
failure will operate to constructively exhaust administrative
remedies as to the request for documents. The only claim that
plaintiff was entitled to file on June 11, 2001, ...