Opinion
Civil Action No. 95-738.
April 25, 2005
Allan Bruce Hemmings, pro se.
Kenneth L. Wainstein, United States Attorney; R. Craig Lawrence, Assistant United States Attorney; Kenneth D. Chason, Attorney Advisor, Office of Information and Privacy, for Defendant Louis Freeh.
[Defendant's Motion to Dismiss is denied; Plaintiff's Motion to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002 is denied.]
OPINION
I INTRODUCTION
Plaintiff, Alan Bruce Hemmings, commenced this action to seek disclosure of documents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Currently before the court is not the substance of the FOIA action, but whether the court should dismiss the case for failure to exhaust administrative remedies if payment of the requisite document production fee is tendered after a motion to dismiss for nonpayment commences. The court finds that the case does not warrant dismissal and thus denies Defendant's Motion to Dismiss. The court also denies without prejudice Plaintiff's Motion to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002.
II BACKGROUND
Plaintiff filed this action under FOIA to seek records about himself from the Federal Bureau of Investigation ("FBI"). Pursuant to Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), the court stayed this case by Order dated February 28, 1996, until December 14, 1999, to provide Defendant time to complete the processing of the responsive records. Defendant moved to extend its time to produce the records to October 11, 2001, because of unanticipated difficulties in processing the forty-eight volumes of highly sensitive materials. The FOIA release which totaled 2,840 pages has been completed with the fourth and final release of records to the Plaintiff made on December 19, 2001.
There were no fees assessed for the first interim release by the FBI made by letter dated March 8, 2000, in which 49 pages were released. Attachment to Defendant's Motion to Dismiss, Third Declaration of Scott A. Hodes ("Hodes Declaration") ¶ 6. For the second interim release by letter dated May 4, 2000, 539 pages were released. Hodes Declaration ¶ 7. Plaintiff was notified in the letter that he owed $48.40 for the processing of this request and he paid the amount to the FBI by check dated July 14, 2000. Hodes Declaration ¶ 7. The third interim released of records to Plaintiff occurred by letter dated September 26, 2001, for which 1071 pages were released. The FBI requested a payment of $107.10. Hodes Declaration ¶ 8. The fourth interim release of records to Plaintiff was made by letter dated December 19, 2001. The FBI released 1050 pages and requested payment from Plaintiff for $105. Hodes Declaration ¶ 9.
Plaintiff did not make either of the two latter requested payments and owed the FBI $212.10. Then counsel for Defendant, Elizabeth Withnell, sent a letter to Plaintiff dated March 19, 2002, referencing a prior phone conversation with Plaintiff and indicating that if Mr. Hemmings did not pay the requested amount, the Government might resort to litigation. Attachment to Defendant's Motion, Letter from Elizabeth Withnell, Counsel for Defendant, to Alan Bruce Hemmings ("Letter dated March 19, 2002") (March 19, 2002). Ms. Withnell also wrote that if Mr. Hemmings sent her a check or money order for the requisite amount, she would "see that it gets to the FBI." Id. She asked that Mr. Hemmings send his payment in this fashion so that she would know when the payment came in and when the litigation would be ready to move forward. Id.
Plaintiff, however, did not remit the $212.10 to the Government and Defendant filed its Motion to Dismiss on June 6, 2002, arguing that Mr. Hemmings had not exhausted his administrative remedies because he failed to pay FOIA fees. Defendant says in its brief that Ms. Withnell had "recently" had telephone conversations with Plaintiff about the fees and Mr. Hemmings had indicated that he was unable to pay because another federal agency had reduced the amount of his federal pension. Defendant's Motion at 4.
After Defendant filed its Motion, however, Plaintiff sent a check for $212.10 dated June 14, 2002, to Defendant's counsel. Plaintiff's Motion to Deny Defendant's Motion to Dismiss and to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002; Defendant's Memorandum in Opposition to "Plaintiff's Motion to Deny the Defendant's Motion to Dismiss and to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002" and in Further Support of Defendant's Motion to Dismiss ("Defendant's Opposition"). While Defendant's counsel has acknowledged receipt of the check, it has not been cashed.
This document is comprised of two separate motions which Plaintiff addresses simultaneously. The court will consider both Motions, the Motion to Deny the Motion to Dismiss, and the Motion to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002, respectively, in succession. Hereinafter, the document containing both the Motions will be referred to as "Plaintiff's Motion" for purposes of clarity.
III STANDARD OF REVIEW
A motion to dismiss under Fed.R.Civ.P. 12(b)(1) puts at issue whether the court has subject matter jurisdiction over the action before it. Under FOIA, exhaustion of administrative remedies is a prerequisite to judicial action. See Oglesby v. United States Dep't of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990). "Exhaustion of administrative remedies is generally required before filing suit 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."Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003) (quotingOglesby, 920 F.2d at 61). However, "absent a statutory provision to the contrary, failure to exhaust is by no means an automatic bar to judicial review; courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing." Oglesby, 920 F.2d at 61 (citingMcKart v. United States, 395 U.S. 185, 194, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969)). Exhaustion under FOIA does not occur until the required fees are paid or an appeal is taken from the refusal to waive fees. Oglesby, 920 F.2d at 65-66.
IV ANALYSIS A Defendant's Motion to Dismiss is Denied
Defendant argues that Plaintiff has failed to exhaust his administrative remedies pursuant to FOIA because he timely failed to pay the fees of $212.10 associated with processing his FOIA request. Defendant's Motion at 1 (citing 5 U.S.C. § 552(a)(4)(A)(ii) and 28 C.F.R. § 16.11 (2001)). Defendant claims that, while Plaintiff made the initial payment of $48.80, Plaintiff refused to pay the additional amount though Defendant's counsel discussed with Plaintiff his financial obligations in telephone conversations and formal notice via letter dated March 19, 2002. Defendant's Opposition at 2. Defendant argues that it waited two months after making the last formal request for payment and was left no choice other than to file its Motion to ensure the litigation proceeded. Id.Plaintiff claims that Defendant's Motion is moot because he
paid the levied fee by Check No. 715, Savings Bank of Walpole, N.H., on June 14, 2004. Said check was sent by U.S. Mail to Defendant's counsel on that date with a written request that the Defendant withdraw its Motion. The Plaintiff has not received a response to his letter and payment of the levied fee.
Plaintiff's Motion at 2.
While Defendant acknowledges receipt of Plaintiff's letter dated June 14, 2002, with the attached check remitting the requested payment to Defendant's counsel, Defendant argues that the fee payment was untimely and that Plaintiff failed to file a timely opposition to Defendant's dismissal motion pursuant to Local Rule 7.1(b) (2002). Defendant's Opposition at 6.
Local Rule 7.1(b) states that "[w]ithin 11 days of the date of service or at such time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such memorandum is not filed within the prescribed time, the court may treat the motion as conceded." (emphasis added). The court declines to consider Defendant's Motion as conceded.
To grant Defendant's Motion in this case would be to exalt form over substance. Plaintiff sent a check for the full amount owed, $212.10, to Defendant's counsel on June 14, 2002, eight days after Defendant filed its dismissal action. Defendant's counsel acknowledged receipt of the check but did not cash it: this was despite the fact that the March 19, 2002, a formal notice letter asked that Plaintiff send his payment directly to Defendant's counsel. Defendant's Opposition at 2-3; Letter dated March 19, 2002. Additionally, while Defendant's counsel did make a number of requests for payment to Plaintiff by telephone and letter, counsel neither gave Plaintiff a hard and fast deadline for remitting the outstanding debt nor closed Plaintiff's FOIA file. The case at hand thus can be distinguished fromJudicial Watch, Inc. v. FBI, 2001 U.S. Dist. LEXIS 25732 at *38-39 (D.D.C. April 20, 2001), which Defendant provided as Defendant's Opposition Attachment 4, in which the court dismissed the action in part because the FBI had given Plaintiff a thirty-day deadline to remit the fees and had already closed the Plaintiff's FOIA file by the time Plaintiff finally made his requested payment. There was no such situation with Mr. Hemmings.
Pursuant to 28 C.F.R. § 16.11(g), the only timeframe that exists with regards to paying FOIA fees is that the Government "may charge interest on any unpaid bill starting on the 31st day following the date of the billing until payment is received. . . ."
In support of its position, Defendant also provides as Attachments to its Motion and Opposition a number of FOIA cases dismissed for lack of subject matter jurisdiction for the nonpayment of fees. See Defendant's Motion Attachment A (Sacco v. FBI, No. 98-1247, Slip Op. at 2 (D.D.C. Mar. 19, 2001), Attachment B (Mells v. IRS, 2001 U.S. Dist. LEXIS 1262 (D.D.C. Jan. 23, 2001), Attachment C (Trenerry v. IRS, 1994 WL 714063 at 4 (N.D. Okla. Sept. 13, 1994); and Defendant's Opposition Attachment 4 (Judicial Watch, Inc. v. FBI, 2001 U.S. Dist. LEXIS 25732).
In Sacco, Judge Jackson dismissed the case "with leave to re-open within thirty days upon proof of payment of the . . . fees." Slip Op. at 3. In Mells, Trenerry, and Judicial Watch, the cases, respectively, were dismissed "without prejudice" so that once Plaintiffs had exhausted administrative remedies, i.e. paid the FOIA fees, they could seek judicial review in their respective FOIA actions. Mells, 2001 U.S. Dist. LEXIS 1262 at 5; Trenerry, 1994 WL 714 063 at 3; Judicial Watch, 2001 U.S. Dist. LEXIS 25732 at *42. The case authority provided by Defendant strongly suggests that the nonpayment of FOIA fees may be cured by payment which is precisely what the Plaintiff has done here.
The court denies Defendant's Motion to Dismiss based upon Plaintiff's payment of the requisite fees shortly after Defendant filed its Motion and his consequent exhaustion of his administrative remedies. See Oglesby, 920 F.2d at 66. As a result, pursuant to 19 C.F.R. § 16.11, Plaintiff paid the FOIA fees effective June 14, 2002.
B Plaintiff's Motion to Reimburse Administrative and Legal Costs for 1994-2002 is Denied
Plaintiff claims that because Defendant has subjected him to a "long history of delays, obstruction, partial and incomplete responses" to his requests, the court should waive all his fees and require "Defendant to reimburse Plaintiff's legal costs, mailing costs, telephone costs, court costs and fees, and any reproduction and processing fees levied by Defendant . . . since the case was filed in 1995." Plaintiff's Motion at 2. Plaintiff calculates this amount to total $3260.70.
Defendant, however, asserts that Plaintiff's Motion for costs is untimely as it is of the type usually sought following litigation. Defendant's Opposition at 9. Defendant cites the FOIA provision, 5 U.S.C. § 552(a)(4)(E), which states that "[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." Defendant points out that to have "substantially prevailed," Plaintiff "must show that he has "`been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree." Defendant's Opposition at 10 (citing Oil, Chem. Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457 (D.C. Cir. 2002) (quoting Buckhannon Bd. Care Home, Inc. v. W.Va. Dep't of Health Human Res., 532 U.S. 598, 603, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001))). In this case, Defendant says that Plaintiff has not substantially prevailed and is not entitled to reimbursement of his costs.
Plaintiff Motion for costs is premature. Section 552(a)(4)(E) awards litigation costs and attorney fees to be paid to a party who has "substantially prevailed." As Defendant notes, pursuant to Buckhannon, 532 U.S. at 603, in order for a Plaintiff to have substantially prevailed, he must have been awarded relief by a court either through a judgment on the merits or by a court-ordered decree. To date, in the present case, Plaintiff has neither been awarded relief by a court through a judgment on the merits of his case or through a court-ordered decree. Thus, Plaintiff has not "substantially prevailed" under 5 U.S.C. § 552(a)(4)(E) and cannot be entitled to recovery of any litigation costs at this time.
The FOIA term "substantially prevailed" is "the functional equivalent" of the "prevailing party" language found in other fee-shifting statutes. See Oil, Chem. Atomic Workers, 288 F.3d at 455-56 (citing Foster v. Boorstin, 182 U.S. App. D.C. 342, 561 F.2d 340, 342 (D.C. Cir. 1977)).
The Buckhannon standard requiring a prevailing party to have, by definition, been awarded relief by a court based on a judgment on the merits or by a court-ordered decree is applicable to FOIA cases. See Oil, Chem. Atomic Workers, 288 F.3d at 456-57.
V CONCLUSION
For the aforementioned reasons, the Court having reviewed the pleadings and papers on file herein, and good cause appearing therefor, it is hereby
ORDERED that the Defendant's Motion to Dismiss be, and hereby is, DENIED; and it is further
ORDERED that the Plaintiff's Motion to Reimburse Plaintiff's Administrative and Legal Costs for 1994-2002 be, and hereby is, DENIED, without prejudice; and it is further
ORDERED that Defendant may file a motion on or before May 6, 2005, arguing that Plaintiff's Motion for Leave to File an Amended Complaint, dated July 19, 2000, was not granted by the Court pursuant to Judge Thomas Penfield Jackson's annotation, "Let this be filed," signed and dated on August 31, 2000, on Defendant's Opposition to Plaintiff's "Motion for Leave to Refile and Amended Complaint"; and it is further
ORDERED that, alternatively, if Defendant considers that the Court's annotation of August 31, 2000, constituted an Order granting Plaintiff's Motion for Leave to File an Amended Complaint, Defendant may file a motion on or before May 6, 2005, arguing that the Court's August 31, 2000, Order should be set aside; and it is further
ORDERED that if Defendant files a motion on or before May 6, 2005, Plaintiff shall file a response, if any, within fifteen (15) days of the filing of Defendant's Motion and Defendant shall have ten (10) days thereafter to file a reply; and it is further
ORDERED that, alternatively, Defendant shall file its Answer to Amended Complaint with the Court on or before June 23, 2005.