Opinion
Civil Action 04-02001 (HHK).
June 20, 2005
MEMORANDUM OPINION
Plaintiff, Kong On Import and Export Company ("Kong"), brings this action against the U.S. Customs and Border Protection Bureau ("Customs") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522. Asserting that Kong failed to exhaust its administrative remedies, Customs moves for summary judgment. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.
I. BACKGROUND
On May 13, 2003, Customs seized a shipment of Kong's merchandise at the Los Angeles-Long Beach Harbor while it was en route from China to Mexico. Compl. ¶¶ 5, 6. On November 14, 2003, Kong submitted a FOIA request to Customs asking for "all information relied upon by Customs for the seizure." Def.'s Ex. A; Compl. ¶ 7. By a letter dated January 13, 2004, Kong filed a FOIA appeal with Customs, asserting that Customs failed to respond to its initial FOIA request. Def.'s Ex. B. After searching for responsive records, Customs sent a letter to Kong, dated August 20, 2004, notifying Kong that it had assembled the requested records and would release them upon receipt of the required $29.74 processing fee. Def.'s Ex. C. Without paying the fee, Kong sent another letter to Customs on October 26, 2004, renewing its request for information and indicating it would file a lawsuit if Customs did not comply. Def.'s Ex. E. Kong did not pay the fee and, consequently, did not receive any records. Kong subsequently filed a complaint in this court on November 15, 2004. On December 23, 2004, Kong mailed a check for $29.74 to Customs. Pl.'s Ex. C.
Specifically, Kong requested "the manuals, guidelines, directives, etc. relied upon by Customs in [this] case. We request all records and/or information that proves any alleged violations in this case." Def.'s Ex. A.
II. ANALYSIS
A. Legal Standard
It is well established that "exhaustion of remedies is a mandatory prerequisite to a lawsuit under FOIA." Wilbur v. C.I.A., 355 F.3d 675, 676 (D.C. Cir. 2004) (citing Wilbur v. C.I.A., 273 F.Supp. 2d 119, 123 (D.D.C. 2003)); see also Hidalgo v. F.B.I., 344 F.3d 1256, 1258-59 (D.C. Cir. 2003); Dettmann v. United States Dep't of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986). A plaintiff's failure to exhaust all administrative remedies in a FOIA case "is tantamount to a failure to sufficiently plead a necessary element of a federal cause of action," and "the appropriate disposition is to dismiss the plaintiff's unexhausted claims under Federal Rule of Civil Procedure 12(b)(6)." Johnson v. District of Columbia, 368 F.Supp. 2d 30, (page cite unavailable) (D.D.C. 2005).
B. Exhaustion of Administrative Remedies
Customs contends that Kong did not exhaust its administrative remedies because it did not pay the required processing fee for the release of records prior to filing this lawsuit. Customs is correct.
FOIA requires each agency to create a "schedule of fees applicable to the processing of requests." 5 U.S.C. § 552(a)(4)(A)(i). Accordingly, the Department of Homeland Security set forth regulations governing fees for FOIA requests. 6 C.F.R. § 5.11. The regulations allow the processing agency to request payment before it releases records as long as the work to gather the records has already been completed. Id. § 5.11(i). A requestor's administrative remedies are exhausted only when she pays the required fees. Oglesby v. United States Dep't of Army, 920 F.2d 57, 66 (D.C. Cir. 1990); Trueblood v. Dep't of the Treasury, I.R.S., 943 F.Supp. 64, 68 (D.D.C. 1996). Payment must also be made prior to filing a lawsuit in federal court. Oglesby, 920 F.2d at 61-62; see also Pollack v. Dep't of Justice, 49 F.3d 115, 118 (4th Cir. 1995).
The Bureau cites to 31 C.F.R. § 1.7 as the regulation that governs FOIA fees. Def.'s Mot. for Summ. J. at 7; Def.'s Ex. C. However, this regulation applies to the Department of Treasury. The regulation that applies to the Department of Homeland Security, of which Customs is a part, is set forth in 6 C.F.R. § 5.11. The court assumes this mistake occurred because Customs used to be part of the Department of Treasury prior to the creation of the Department of Homeland Security in 2003. See Doe v. United States, 61 Fed. Cl. 453, 454 n. 3 (Fed.Cl. 2004) (citing 6 U.S.C. § 252 (Supp. 2003)). The slight differences between the two regulations are of no consequence for purposes of resolving this motion.
It is undisputed that Kong failed to pay the FOIA fee prior to filing suit in this court. On August 20, 2004, Customs notified Kong that "[r]ecords have been assembled; however, [Customs] requests prepayment of the fees prior to the release of the information." Def.'s Ex. C. Without paying the fee, Kong renewed its FOIA request on October 26, 2004, and filed this suit on November 15, 2004. Def.'s Ex. E. While Kong's counsel mailed a check for $29.74 to Customs on December 24, 2004, he did so thirty nine days after Kong filed its complaint. Pl.'s Statement of Material Facts ("Pl.'s Statement") ¶ 8; Pl.'s Ex. C. Therefore, Kong did not exhaust its administrative remedies prior to filing suit.
While conceding that it did not pay the required processing fee before filing this lawsuit, Kong nevertheless contends that it "was deemed to have exhausted its administrative remedies when [Customs] failed to comply with applicable time limit provisions." Pl.'s Statement ¶ 8; Pl.'s Mot. For Summ. J. at 4. In support of its position, Kong cites 5 U.S.C. § 552(a)(6)(C), which provides that a FOIA requestor "shall be deemed to have exhausted his administrative remedies . . . if the agency fails to comply with the applicable time limit[s]." Kong argues that because Customs did not timely respond to its initial FOIA request or appeal, it has constructively exhausted its administrative remedies. Kong's argument cannot be sustained. The doctrine of constructive exhaustion does not apply if the agency responds to a FOIA request before a requestor files suit, even if the agency violated the time limits. Oglesby, 920 F.2d at 64 (stating "once the agency responds to the FOIA request, the requestor must exhaust his administrative remedies before seeking judicial review"). Customs responded to Kong's request on August 20, 2004, three months before Kong filed its complaint. At this point, Kong's obligation to exhaust all administrative remedies before filing suit was renewed. Because Kong did not do so, Customs is entitled to judgment.
FOIA requires an agency to make a determination as to any FOIA request or appeal within twenty days of receipt of the request. 5 U.S.C. § 552(a)(6)(A). Kong initially filed its FOIA request on November 14, 2003, and it filed an appeal on January 13, 2004. Pl.'s Exs. A, B. Customs did not respond to Kong's request until August 20, 2004. Pl.'s Ex. C.
Customs also argues that this case should be dismissed because Kong withdrew its FOIA request in a letter dated September 7, 2004. The letter states, "[t]he requestor expects the release of its seized merchandise soon so we don't need the FOIA records referenced in the enclosed Customs letter. Therefore, the requestor withdrawals [sic] the FOIA request." Def.'s Ex. D. Because Customs is entitled to judgment due to Kong's failure to exhaust its administrative remedies, it need not reach the issue of whether this letter constitutes a withdrawal of Kong's FOIA request.