UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 9, 2009
JAMES STEPHEN JONES, PLAINTIFF,
U.S. DEP'T OF JUSTICE, DEFENDANT.
The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge
Plaintiff James Stephen Jones, proceeding pro se, alleges that the United States Department of Justice ("DOJ") has not complied with the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The matter is now before the court on defendant's second dispositive motion and plaintiff's motions for in camera inspection of documents (that have not been either identified or released), for appointed counsel, and to take judicial notice. The record unequivocally establishes that plaintiff has not exhausted his administrative remedies, a condition precedent to maintaining this lawsuit. Therefore, the complaint will be dismissed without prejudice for failure to state a claim upon which relief may be granted, and all pending motions will be denied as moot.
Plaintiff is a prisoner who relies on prison staff to handle his outgoing and incoming mail.*fn1 Plaintiff filed this lawsuit alleging that the DOJ had not responded to his FOIA request. The DOJ filed its first dispositive motion, supported by a copy of a letter responding to plaintiff's FOIA request, and stating that it had closed the case because plaintiff had not filed the required certificate of identity ("COI"), thereby failing to exhaust his administrative remedies. Plaintiff submitted a sworn statement, supported by a copy of his COI, attesting that he had included a COI with his FOIA request, even though the DOJ had no record of receiving it.*fn2 The record did not show conclusively whether or not the DOJ's response asking for a COI had ever reached plaintiff. Construing the record facts in the light most favorable to plaintiff, the court denied the DOJ's first dispositive motion to dismiss the case for plaintiff's failure to exhaust his administrative remedies. See Mem. Op., Sept. 16, 2008 at 5-6. Thereafter, the DOJ determined that it would rely on the COI dated October 12, 2005, that plaintiff filed with his opposition. See Def.'s Submission, Oct. 16, 2008 ("First Status Report") at 2.
By letter dated October 14, 2008, the DOJ notified plaintiff that his multiple search requests had been aggregated into one, and that the fee for continuing to search and process the aggregated requests was estimated to be $56.00. See Ex. G. The letter also states that the FOIA "request shall not be considered received and further work shall not be completed until the requester agrees to pay the anticipated fees," and that if the requester did not respond within 30 days, the request would be closed. Id. When the DOJ did not receive a response within the allowed time, see Def.'s Submission, Nov. 21, 2008 ("Second Status Report"), it filed its second dispositive motion, now before the court, on the ground that plaintiff had not exhausted his administrative remedies.*fn3
In response to the DOJ's October 14, 2008 letter regarding fees and aggregation, plaintiff states that he respectfully requests that this Honorable Court carefully oversee and supervise the Defendant's action in their search, copying and production of the requested documents and analyze any excuses of the Defendant with an eye towards Plaintiff's allegations of government fraud being true, and rule accordingly as this Court deems just and proper. Under such terms, Plaintiff agrees to pay the search and copying fees in the event this Court deems it necessary.
See Pl.'s Objections to Second Status Report, Dec. 12, 2008 ("Pl.'s Obj'ns"), Ex. A. at 8 (emphasis added).*fn4 Plaintiff also objects to the aggregation of his FOIA requests and asserts that he is entitled to a public interest waiver of any fees, see id., Ex. A, positions he reiterates in his opposition to the DOJ's second dispositive motion, see Opp'n at 4-7.
On this record, there can be no genuine dispute as to the following facts: (1) plaintiff has not agreed - absent multiple conditions and a court order - to pay the search fees; (2) plaintiff has not administratively appealed the agency's decision to aggregate his requests; and (3) that plaintiff never applied for, let alone administratively appealed an adverse decision regarding, a public interest waiver of the search and processing fees.
The FOIA incorporates a scheme of administrative appeals that are designed to permit an agency "'the opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'" Hidalgo v. F.B.I., 344 F.3d 1256, 1259 (D.C. Cir. 2003) (quoting Oglesby v. Dep't of Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). "The exhaustion requirement also allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review." Oglesby, 920 F.2d at 61. Any decision by an agency adverse to a requester must be appealed and resolved before it is entertained by a federal district court; a federal district court is not the forum for the initial determination of a FOIA requester's challenge to an agency's decision. See Cleary, Gottlief, Steen & Hamilton v. Dep't of Health and Human Svcs., 844 F. Supp. 770, 780 (D.D.C. 1993) (stating in a FOIA case that " federal district court is not the forum for an initial assertion of non-compliance"). "Where a FOIA plaintiff attempts to obtain judicial review without first properly undertaking full administrative exhaustion, his lawsuit is subject to immediate dismissal . . . ." Judicial Watch, Inc. v. F.B.I., Civil Action No. 00-745 (TFH), 2001 WL 35612541, *12 (D.D.C. Apr. 20, 2001).
Fulfilling the FOIA's exhaustion requirement is, as a matter of jurisprudential doctrine, a condition precedent to filing a lawsuit, and failure to exhaust precludes judicial review. Hidalgo v. F.B.I., 344 F.3d 1256, 1259 (D.C. Cir. 2003).
A FOIA requester is deemed to have failed to exhaust administrative remedies whenever he does not comply with the fee requirements. See Judicial Watch v. F.B.I., 2001 WL 35612541, *12. "Regardless of whether the plaintiff filed suit before or after receiving a request for payment, the plaintiff has an obligation to pay for the reasonable copying and search fees assessed by the defendant." Trueblood v. U.S. Dep't of the Treasury, I.R.S., 943 F. Supp. 64, 68 (D.D.C. 1996)(citing Pollack v. Department of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied, 516 U.S. 843 (1995) (holding that payment of fees is a statutory requirement under the FOIA and that the filing of a FOIA suit does not relieve the requester of the obligation to pay). Even when a fee assessment comes "after the filing of [the] lawsuit, [a] plaintiff is obligated nonetheless to pay the fee or to seek from the agency either a fee waiver or a fee reduction." Maydak v. U.S. Dep't of Justice, 254 F. Supp. 23, 50 (D.D.C. 2003).
It is clear on this record that the administrative process has not run its course and that the issues presented are not ripe for judicial review. The agency has notified plaintiff of the estimated fees and has asked him to agree to pay the fees; the agency has no further obligation to plaintiff until plaintiff agrees to pay or takes an administrative appeal. Plaintiff has neither committed to paying the fees without conditions the court declines to accept, nor disputed the agency's aggregation decision or sought a fee waiver at the administrative level. Any dispute regarding the fees, the aggregation, or a fee waiver must first be raised and pursued to exhaustion in the administrative process before it will be entertained in a federal lawsuit. Accordingly, because plaintiff has not exhausted his administrative remedies, the complaint will be dismissed without prejudice, and all pending motions will be denied as moot. A separate order accompanies this memorandum opinion.