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March 5, 2002


The opinion of the court was delivered by: Paul L. Friedman, District Judge.


This matter came before the Court on plaintiffs expedited request for emergency status conference. The Court issued an order on February 7, 2002 scheduling a status conference for February 15, 2002, and directing the defendants to be prepared to advise the Court of the status of the FOIA responses from the various agencies to whom plaintiff had made FOIA requests. At plaintiffs request, the status conference was moved from February 15 to February 28, 2002.


While it is true that a requester generally must exhaust its administrative remedies under the Freedom of Information Act before coming to court, this is not a case where defendants provided some documents and invoked exemptions with respect to others within twenty days after it received the FOIA request. Nor is it a case where the defendants (with two exceptions) provided any response at all or any documents during the first twenty days or even at any time closely proximate to the twenty-day period.*fn1 With respect to seven of the nine agencies to which plaintiff made FOIA requests, plaintiff had not received any substantive response either by the time it filed its suit or by the time defendants say it should have filed suit, seven days later. Nearly ten months later, at least three agencies still have not responded to plaintiffs requests. In these circumstances, it would be putting form over substance to dismiss the complaint and require plaintiff to start all over again by filing a new complaint.

Rather than dismissing this case, the Court will permit plaintiff to file a supplemental complaint under Rule 15(d) of the Federal Rules of Civil Procedure.*fn2 A supplemental complaint may be permitted under Rule 15(d) in order to cure an asserted jurisdictional defect where it is suggested that a court lacks jurisdiction over the claim "at the time of its original filing" and the supplemental complaint cures the jurisdictional defect "by alleging the subsequent fact which eliminates the jurisdictional bar." Wilson v. Westinghouse Electric Corp., 838 F.2d 286, 290 (8th Cir. 1988) (citing Mathews v. Diaz, 426 U.S. 67, 75, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976)). Permitting a supplemental pleading here will "promote the economic and speedy disposition of the controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any other party." Bornholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989); see also Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001); 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1504 (2d ed. 1990). To do otherwise would be to create "precisely the kind of procedural mousetrap that the Federal Rules were designed to dismantle." Wilson v. Westinghouse Electric Corp., 838 F.2d at 289.

In this case, the only additional fact that must be alleged in plaintiffs supplemental pleading is that on May 18, 2001, plaintiff had received no responses from defendants (other than for OMB and FEMA) to plaintiffs FOIA request. Under the FOIA itself and the law of this Circuit, had plaintiff filed suit on May 18, 2001, as defendants suggest would have been appropriate, instead of on May 9, 2001, plaintiff would be deemed to have constructively exhausted its administrative remedies at least as to those agencies that had not responded at all, and there would be no argument for dismissal. See 5 U.S.C. § 552(a)(6)(C); Spannaus v. Department of Justice, 824 F.2d 52, 58 (D.C.Cir. 1987). On the basis of plaintiffs constructive exhaustion as of May 18, 2001, the Court will deny defendants' motion to dismiss and will permit plaintiff to file a supplemental complaint.*fn3


Ten months now have passed since plaintiff filed its lawsuit. According to defendants, four of the agencies with whom plaintiff filed FOIA requests — OMB, the Department of the Interior, the Department of Agriculture and the Environmental Protection Agency — have responded to the requests in full. As noted, only OMB responded in a timely fashion. OMB found 374 documents that were responsive to plaintiffs FOIA request, it released six and invoked Exemption 5 with respect to the remainder. The Department of Interior released 40 documents comprising 407 pages. The Department of Agriculture identified 435 pages responsive to plaintiffs request, it released 360 pages and invoked exemptions with respect to others. The EPA released 143 documents, comprising 809 pages; it has withheld 19,524 pages.

Three agencies — the Department of Energy, the Department of Transportation and the Department of Commerce — are still processing plaintiffs FOIA requests and thus far have produced nothing. According to defendants, there are approximately 6,000 pages of documents among the universe of possibly responsive documents at the Department of Transportation and 9,000 pages of documents at the Department of Commerce. As for the Department of Energy, defendants represent that there are approximately 7,500 pages of documents and that the potentially responsive documents at issue are the same documents that Judge Kessler recently directed the Energy Department to complete processing by April 10, 2002. See Natural Resources Defense Council v. Department of Energy, 191 F. Supp.2d 41 (D.C. 2002) Memorandum Order.

Based upon the foregoing and the representations made by counsel in court at the status conference on February 28, 2002, it is hereby

ORDERED that defendants' motion to dismiss is DENIED; it is

FURTHER ORDERED that on or before March 12, 2002, plaintiff shall file its supplemental complaint which shall be treated as if it ...

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