Rosenberg v. U.S. Dep't of Immigration and Customs Enforcement, No. 12-452, 2013 WL 3803899 (D.D.C. July 23, 2013) (Kollar-Kotelly, J.)

Tuesday, July 23, 2013
Re: Request for records related to raid of meatpacking plant and subsequent prosecution of plaintiff's client, the manager of the plant Disposition: Granting defendants' motions for summary judgment
  • Fees/Exhaustion: The court grants summary judgment in favor of EOUSA because plaintiff failed to pay the reasonable search fees associated with his request for records concerning the meatpacking plant.  As an initial matter, the court rejects plaintiff's argument that he was not required to pay fees because EOUSA did not comply with the statutory time limits for responding to a request.  "[S]ection 552(a)(4)(A)(viii) permits the agency to impose search fees even if it did not comply with the time requirements of paragraph (6) if 'unusual or exceptional circumstances,' as defined 'for purposes of paragraphs (6)(B) and (C)' apply to the Plaintiff's request."  "[U]nusual circumstances exist in this case because EOUSA needed to search for and collect records from the United States Attorney's Office for the Northern District of Iowa."  The court finds that EOUSA may impose fees despite plaintiff's argument that EOUSA did not comply with "procedural requirements for seeking additional time."  "The plain text of [the statute] requires only that unusual circumstances as defined by paragraph 6(B) or (C) . . . [exist] not that unusual circumstances exist and that the agency properly seek additional time to respond to the request in light of unusual circumstances." Additionally, the court notes that "[t]he fact that a fee request was made after the Plaintiff commenced litigation does not excuse the Plaintiff from paying the requested fees."  The court notes that "when a fee request is valid, a plaintiff must comply, even if the agency did not submit the fee request until after the plaintiff filed suit." The court also dismisses plaintiff's argument that EOUSA's fees were a litigation tactic. The court notes first that "EOUSA began formulating an estimate of the search cost shortly after the Plaintiff submitted his request and months before the Plaintiff filed suit."  Second, "[t]he costs EOUSA would incur are substantial." Third, "[t]he fact that the agency requested prepayment of only a part of the search fees that may be incurred so as to avoid artificially increasing the estimate tends to show that the request is made in good faith, and not as a litigation tactic."  Finally, the court notes that the fact that the request for prepayment was submitted after plaintiff sued does not necessarily mean this was a litigation tactic.  "Because the Plaintiff purported to constructively exhaust rather than actually exhaust his administrative remedies, by definition every position the EOUSA takes in this case was raised for the first time after litigation commenced; there were no administrative proceedings during which the EOUSA could have raised its defenses." The court also rejects plaintiff's contention that EOUSA's fee estimate was unreasonable.  "Plaintiff offers no specific analysis or evidence to demonstrate the requested fees are unreasonable."  "The fees are based on estimates of the hours that would be required for each step in the process of restoring the back-up tapes that may contain potentially responsive documents."   Noting that the fees comply with the Department's regulations and that plaintiff was given an opportunity to reformulate his request, the court concludes that "[p]laintiff's 'bare allegations' that the EOUSA's fee estimate is unreasonable [are] insufficient to create a genuine issue of material fact."
  • Exhaustion:The court holds that plaintiff failed to exhaust his administrative remedies with respect to the portion of his request concerning records on third parties.  The court notes that there is no futility exception to the exhaustion requirement of the FOIA.  Plaintiff argued that appealing EOUSA's denial of his request for records on third parties would have been futile because EOUSA failed to inform him which paragraphs of his request were placed into request 2011-3285, which involved third parties.  The court remarks that even if there were a futility exception to the FOIA, plaintiff has not shown that exhaustion would have been futile.  "The fact that the Plaintiff would have liked an explicit list of the paragraphs the EOUSA included within the scope of request number 2011-3285 before drafting his appeal does not excuse his failure to exhaust his administrative remedies.  Nothing in the present record suggests the EOUSA was certain to reject an appeal by the Plaintiff concerning the agency's response to request number 2011-3285."The court holds that plaintiff failed to exhaust his administrative remedies with respect to his request made to USMS.  The court rejected plaintiff's contention that USMS's "November 2 letter was not a final agency action because the letter indicated the agency 'is responding to your request' and did not explicitly state that the search for potentially responsive records was complete."  USMS notified plaintiff that 166 pages had been located, 98 of which were referred to originating agencies.  The remaining pages were released with redactions.  This letter "more than satisfied the requirement for an agency response sufficient to trigger the exhaustion requirement."  The fact that additional pages were located during the litigation "is arguably relevant to the adequacy of the agency's initial search [but] does not call into question the finality of the agency's November 2, 2011 letter."  Accordingly, the court concludes that plaintiff failed to exhaust his administrative remedies and grants summary judgment in favor of USMS.
District Court
Fees and Fee Waiver
Updated August 6, 2014