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Waldner v. United States Department of Justice

United States District Court, District Circuit

September 23, 2013

ROGER WALDNER, Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Before the Court is the government's motion to dismiss, or alternatively, the government's motion for summary judgment on plaintiff Roger Waldner's compliant brought pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Waldner filed a complaint alleging that the Department of Justice (DOJ) failed to comply with his FOIA requests and requested the Court enjoin the government to comply with its obligation under FOIA, or enter a declaratory judgment that the government at no time had the documents requested by Waldner. For the reasons stated below, the government's motion to dismiss will be DENIED, but the government's motion for summary judgment will be GRANTED.

I. BACKGROUND

On June 27, 2011, Waldner filed a FOIA request with the DOJ, seeking the production of three types of documents regarding Solace Transfer Corporation, an Illinois corporation. One day later, Waldner filed an additional FOIA request with the DOJ, seeking the production of seven types of documents related to Nationwide Cartage Company, an Iowa corporation. All of the requested documents related to a criminal case where Waldner accepted a plea agreement, and were aimed at obtaining documents allegedly alluded to during those negotiations.

In response to Waldner's FOIA requests, the Executive Office of the U.S. Attorneys (EOUSA) issued a letter of acknowledgement of Waldner's June 28, 2011 request on August 17, 2011. Similarly, EOUSA issued a letter of acknowledgement for the June 27, 2011 request on August 19, 2011. EOUSA then sent both of Waldner's requests to the U.S. Attorneys' Office (USAO) in the Northern District of Iowa for processing on August 26, 2011 and August 31, 2011. Employees at the USAO conducted searches for the requested documents on September 1, 2011, September 15, 2011, and January 19, 2012. Additionally, email requests were sent to all permanent employees in the office, detailed searches of various databases were conducted, and manual files searches occurred.

In the meantime, Waldner sent a letter to the Office of Information Policy (OIP) dated September 4, 2011 requesting an expedited appeal of his FOIA requests for the alleged failure of EOUSA to respond to his requests. Waldner alleged that the lack of response constituted a constructive denial by the DOJ.

On September 26, 201, EOUSA provided Waldner with all documents responsive to his June 27, 2011 request. Then, nearly a year later, on September 24, 2012, Waldner received the documents in response to his June 28, 2011 request. Upon receiving the documents from EOUSA, Waldner-believing administrative appeal to be futile, his remedies to be exhausted, and the produced documents to be unresponsive-filed a pro se complaint on January 7, 2013.

II. DISCUSSION

A. Motion to Dismiss for Failure to Exhaust Administrative Remedies

Under 5 U.S.C. § 552(a)(4)(B), when a FOIA requester properly exhausts his administrative remedies, he may file a civil action challenging the agency's response to his request. 5 U.S.C. § 552(a)(4)(B). "Exhaustion of administrative remedies is generally required before filing in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'" Hildalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quoting Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 61 (D.C Cir. 1990)).

Under the principle of constructive exhaustion, "[a]ny person making a request to any agency for records under [5 U.S.C. §§ 552(a)(1)-(3)] shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph." 5 U.S.C. § 552(a)(6)(C)(i). The applicable time limits are found in 5 U.S.C. § 552(a)(6)(A)(i), and they require the agency to make a determination "within 20 days... after the receipt of any [FOIA] request whether to comply with such request" and "immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination." Id .; see also Oglesby, 920 F.2d at 65.

While "[c]onstructive exhaustion is not intended to supplant the agency's authority under the FOIA with premature judicial oversight, " here, the government's lack of a response within the 20 days required under the statute, means that judicial oversight is not premature. Citizens for Responsibility & Ethics in Wash. v. FEC, 839 F.Supp.2d 17, 24 (D.D.C. 2011). "Constructive exhaustion in the FOIA is a privilege granted only to individuals whose requests for records have essentially been ignored by the agency, and it is a privilege reserved for a situation in which agency neglect has resulted in a fail[ure] to comply with the applicable time limit provisions of' 5 U.S.C. § 552(a)(6)." Nat'l Sec. Counselors v. C.I.A., ___ F.Supp.2d ___, 2013 WL 1141768, *14 (D.D.C. Mar. 20, 2013).

Had the government sent its response letters to Waldner's June 27, 2011 and June 28, 2011 requests prior to August 17, 2011 and August 19, 2011-within 20 days after the receipt of the requests-the government would have foreclosed constructive exhaustion and triggered the requirement that Waldner file an administrative appeal before proceeding to federal court. That did not happen here, and as such, the Court considers ...


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