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Zambrana v. Executive Office for United States Attorneys

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


May 12, 2008

JAY ZAMBRANA, PLAINTIFF,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS ET AL., DEFENDANTS.

The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

In July and August of 2006, plaintiff requested under the Freedom of Information Act ("FOIA") Federal Bureau of Investigation records "in any way connected to his name." Compl. at 2. By letter of August 9, 2007, the FBI released 795 pages of responsive records and assessed a duplication fee of $69.50. Second Declaration of Peggy L. Bellando [Dkt. No. 24-2] ¶ 12 & Ex. H. Having received no payment by October 2007, the FBI moved to dismiss or for summary judgment.*fn1 Plaintiff does not dispute that as of January 22, 2008, he had not paid the assessed fee.

See Second Bellando Decl. ¶ 13.

The payment or waiver of assessed fees or an administrative appeal from the denial of a fee waiver request is a condition precedent to obtaining judicial review of a FOIA complaint.

Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65-67 (D.C. Cir. 1990); Trueblood v. U.S. Dep't of Treasury, I.R.S., 943 F. Supp. 64, 68 (D.D.C. 1996) (citing Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied, 518 U.S. 1032 (1995)). Because payment is required "[r]egardless of whether the plaintiff 'filed' suit before or after receiving a request for payment,"

Trueblood, 943 F. Supp. at 68, plaintiff will be required to pay the assessed fee before obtaining judicial review of unfavorable action. Smith v. Federal Bureau of Prisons, 517 F. Supp.2d 451, 455 (D.D.C. 2007) (Roberts, J.).*fn2 Therefore, since matters outside the pleadings have been considered, see Fed. R. Civ. P. 12(d), the FBI is entitled to judgment as a matter of law.*fn3 A separate Order accompanies this Memorandum Opinion.


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