Kottori v. FBI, No.10-11913, 2011 WL 1827673 (D. Mass. May 13, 2011) (Bowler, Mag.).  Holding:  Dismissing the complaint for lack of subject matter jurisdiction based on plaintiff's failure to exhaust her administrative remedies.  The court dismisses the complaint for lack of subject matter jurisdiction, concluding that plaintiff failed to exhaust administrative remedies where "neither FBI headquarters nor the FBI's Boston field office have received any document requests from plaintiff" and "[p]laintiff has not offered any evidence to the contrary."  The court notes that "by failing to submit a FOIA request, plaintiff never began the FOIA administrative process and thus cannot show that she has exhausted all administrative remedies."

Muset v. Comm'r Ishimaru, No. 07-4083, 2011 U.S. Dist. LEXIS 47587 (E.D.N.Y. Apr. 30, 2011) (Vitaliano, J.).  Holding:  Dismissing plaintiff's FOIA claim as moot as to the records released by IRS and dismissing for lack of subject matter jurisdiction as to the withheld documents due to plaintiff's failure to exhaust his administrative remedies.  Exhaustion of administrative remedies:  The court finds that "as a matter of FOIA process" that plaintiff "was required first to appeal directly to the IRS before seeking federal judicial relief" and that his "failure to exhaust the administrative remedies provided by FOIA divests a federal district court of subject matter jurisdiction over any claim regarding that request for judicial relief."

Bory v. U.S. R.R. Ret. Bd., No. 09-1149, 2010 U.S. Dist. LEXIS 130545 (M.D. Fla. Dec. 9, 2010) (Melton, J.). The court denies the agency's motion for summary judgment because "a question of fact exists on the record" as to "whether Defendant thoroughly searched its records and fully responded to Plaintiffs' requests" and "whether Plaintiffs should have been notified of their right to appeal Defendant's responses." The court finds that "[t]o support Defendant's position that it need not notify FOIA requesters of their right to appeal whenever it claims to have provided all information and also then to require all requesters to administratively exhaust agency remedies before seeking relief in federal court when they dispute that all information was provided, simply would not be fair, and is not required to fulfill the purposes of the exhaustion requirement, which include giving Defendant an opportunity to correct its mistake or omission."

Steese, Evans & Frankel, P.C. v. SEC, No. 10-1071, 2010 U.S. Dist. LEXIS 129401 (D. Colo. Dec. 7, 2010) (Arguello, J.). As an initial issue, the court notes that the "view of the Tenth Circuit appears to be that exhaustion is a jurisdictional prerequisite," rather than a prudential consideration, but comments that "[t]his distinction is of little moment in the instant case as the Court finds the failure of Plaintiff to exhaust its remedies bars judicial review under either view." Here, the court determines that plaintiff failed to exhaust its remedies with respect to three categories of information that it did not identify in its initial request and, accordingly, concludes that plaintiff did not provide the SEC with "'an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.'"

Strunk v. U.S. Dep't of the Interior, No. 10-0066, 2010 WL 4780845 (D.D.C. Nov. 24, 2010) (Leon, J.). The court grants the Department of the Interior's unopposed motion to dismiss a portion of plaintiff's complaint based on a FOIA request for which the agency had no record of receiving.

Godaire v. Napolitano, No. 10-1266, 2010 U.S. Dist. LEXIS 122237 (D. Conn. Nov. 17, 2010) (Kravitz, J.). Plaintiff is deemed to have constructively exhausted his administrative remedies with respect to a request submitted to DOJ's Office of the Inspector General (OIG) where "his request to the DOJ complied with the agency's own regulations." First, the court determines that plaintiff properly followed DOJ regulations by sending his initial request to the OIG – the component most likely to maintain records responsive to his request – because "it is not unreasonable to presume that the component of the DOJ that received a complaint is the component that maintains records related to the complaint." Second, the court holds, in accordance with Second Circuit case law, that "under the DOJ’s own regulations, a component of the agency 'has no right to resist disclosure because the request fails reasonably to describe records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.'" Here, the court finds that plaintiff's "Complaint does not indicate that the DOJ attempted to assist [him] in refining his FOIA request."

The court dismisses plaintiff's FOIA claims against the FCC "without prejudice to any amendment he may wish to file" because it is not clear from the record whether plaintiff complied with the agency's regulations regarding fees. FCC regulations provide that "a FOIA request 'shall . . . specify the maximum search fee the person making the request is prepared to pay or a request for a waiver or reduction of fees if the requester is eligible.'" The court finds that plaintiff "did not specify a maximum search fee" in his request and "has not alleged that he submitted a request to the FCC for a waiver or reduction of fees."

The court dismisses plaintiff's claims against the DHS on the basis that his requests are defective and do not comply with the agency's regulations. With respect to one of plaintiff's requests that "sought documents held by other agencies, and asked the [DHS] to compile information about documents 'not in [its] possession,'" the court finds that it extends beyond the of scope of the FOIA. Additionally, the court concludes that plaintiff did not abide by DHS regulations when requesting records related to individuals, finding that "[a]lthough [plaintiff] requested records about both himself and another individual [], in his letters . . . he did not state his date and place of birth, he did not have his signature notarized or sign under penalty of perjury, and he did not provide authorization from [the third party] or proof of [that third party's] death." Regarding a request made to the Office of the Secretary of DHS, the court finds that plaintiff did not send his request to the proper FOIA office specified in DHS's regulations. The court determines that "[b]ecause [plaintiff] has not alleged that his FOIA request was sent to or received by a [DHS] component that is designated to receive FOIA requests under the agency's own regulations, [he] has not even constructively exhausted his administrative remedies, and amendment of his Complaint with regard to his request to [DHS] would be futile."

Wall v. EOUSA, No. 09-344, 2010 U.S. Dist. LEXIS 120826 (D. Conn. Nov. 16, 2010) (Hall, J.). The court rejects as "gratuitous" EOUSA's argument that plaintiff failed to exhaust his administrative remedies because he did not request a fee waiver along with his initial FOIA request, but rather first requested a waiver of fees in connection with his administrative appeal. Given that DOJ's appellate authority addressed the issue and given that exhaustion "is prudential, not jurisdictional," dismissal is not appropriate. Further, the court determines that the "the purposes behind the exhaustion requirement have been more than adequately served here" because "[t]he Department was not deprived of an opportunity to create a factual record."

Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 120895 (E.D. Wash. Nov. 15, 2010) (Shea, J.). Exhaustion of administrative remedies/proper FOIA request: The court holds that since plaintiff "has not submitted a proper FOIA request, the Board was under no obligation to adhere to the statutory time requirements [to respond to his request] and [he] failed to exhaust his administrative remedies." The court observes that "[t]he statutory time limits for an agency's response are not triggered until a proper FOIA request is received." However, here, the court finds that none of plaintiff's three broadly-worded requests constitute proper FOIA requests because they asked questions or "do not reasonably describe the records sought" and "would unduly burden the FOI Office and significantly interfere with the Board's operations."

K-Mar Indus., Inc. v. DOD, No. 10-984, 2010 WL 4829965 (W.D. Okla. Nov. 4, 2010) (Friot, J.). The court denies defendants' motion to dismiss plaintiff's FOIA claim for failure to exhaust administrative remedies where "many of defendants' arguments concern the merits of their contention that delays [in processing the FOIA request] have been justified rather than the propriety of dismissal for failure to exhaust remedies." The court finds that "[i]n contrast to the cases cited by the defendants, here there are no issues regarding lack of notice to the government of plaintiff's FOIA request, or the sufficiency of plaintiff's FOIA request." Additionally, "[p]laintiff has not taken a scattershot approach to its request and has not failed to appeal a denial despite notification of appeal rights."

Torres v. DHS, No. 09-8640, 2010 U.S. Dist. LEXIS 120353 (S.D.N.Y. Nov. 2, 2010) (Fox, Mag.). As a preliminary matter, the court finds that "FOIA's statutory language and a significant number of cases in this circuit support the conclusion that exhaustion of administrative remedies is a jurisdictional prerequisite to suit in federal court." In the instant case, the court dismisses plaintiff's FOIA claims for lack of subject matter jurisdiction because "the Court cannot discern [from his complaint] whether [he] made a request for records to DHS, let alone whether he appealed a denial of that request, prior to filing the instant action."

Weirich v. Bd. of Governors of the Fed. Reserve Sys., No. 10-5031, 2010 U.S. Dist. LEXIS 117203 (E.D. Wa. Nov. 2, 2010) (Shea, J.). The court finds that plaintiff's "non-compliance with FOIA" by not reasonably describing the records sought does not constitute a failure to exhaust his administrative remedies. Instead, the court concludes that plaintiff exhausted his administrative remedies where "the Board did not comply with the FOIA's statutory time requirements." The court notes that under the FOIA the Board was required to "1) notify [plaintiff] that his request could not be processed within the ten-day extension, and 2) allow him to either limit his request so that it could be processed within the time limit or arrange for an alternative time frame." The court orders defendant to submit a supplemental briefing to explain why the case the should be dismissed for lack of subject matter jurisdiction given defendant's apparent failure to comply with the statutory time limits.

Abou-Hussein v. Mabus, No. 09-1988, 2010 US Dist. LEXIS 114830 (D.S.C. Oct. 28. 2010) (Gergel, J.). With respect to two of five FOIA requests submitted by plaintiff, the court finds that he "failed to comply with the administrative mechanisms adopted by Congress" and, accordingly, "cannot now complain that FOIA has been violated."

Powell v. Gibbons, No. 09-093, 2010 WL 4293278 (D. Nev. Oct. 20, 2010) (Jones, J.). The court concludes that it lacks jurisdiction over plaintiff's FOIA claim where "he fails to allege the nature of the documents that he seeks," and "also fails to allege that the United States Department of Justice and the Federal Bureau of Prisons has the records he seeks and that he made a full and proper FOIA request." The court further notes that "to the extent that plaintiff can adequately allege a cognizable claim under FOIA in the future, that claim may be asserted in an action brought under FOIA, rather than in the instant civil rights actions."

Thompson v. U.S. Marine Corp, No. 09-16523, 2010 WL 3860578 (11th Cir. Oct. 5, 2010) (per curiam) . The court affirms the district court's order denying plaintiff's motion to reopen his previously dismissed FOIA case. The court concludes that the district court properly dismissed the action as "[u]nder the facts alleged in [plaintiff's] complaint, he 'neither actually nor constructively exhausted his administrative remedies.'" However, the court notes that "the district court should have dismissed the FOIA claim pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, rather than for lack of subject matter jurisdiction [because] [e]xhaustion of administrative remedies is not a jurisdictional requirement, but 'performs a function similar to the judicial doctrine of ripeness by postponing judicial review.'"

Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Notwithstanding the fact that duplication fees were incurred in connection with plaintiff's request, the court grants his request that he receive 100 pages free of charge because "[a]lthough the EOUSA may require payment of copying fees prior to the release of responsive records, neither its written notice to plaintiff nor its declaration in support of its summary judgment motion precludes the release of 100 pages of records at no charge to plaintiff." The court further notes that even though EOUSA advised plaintiff that his "request would be closed if payment was not received within 30 days, [] it did not state expressly that plaintiff's failure to respond timely would be cause for administrative closure of the request."

Plaintiff did not exhaust his administrative remedies with respect to five "related" files in which his name was mentioned where DEA offered plaintiff the option to have those files manually searched and plaintiff did not agree to a pay the associated costs or challenge the DEA's motion on this ground.

Voinche v. Obama, No. 09-1081, 2010 WL 3833736 (D.D.C. Sept. 29, 2010) (Sullivan, J.). The court grants defendants' motion for summary judgment with respect to the Council of Environmental Quality where defendants assert that plaintiff did not file an administrative appeal, and he "does not dispute this evidence."

Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). The court decides to adjudicate on the merits several requests for which the plaintiff failed to file an administrative appeal "[g]iven that the SEC's correspondence with the plaintiff [was] arguably vague as to whether the plaintiff was appraised that he had the right to appeal" and "also given that the defendant subsequently responded to those production requests."

Reynolds v. Att'y Gen. of the United States, No. 09-3675, 2010 WL 3370280 (2d Cir. Aug. 26, 2010) (unpublished disposition). The court determines, that based on its conclusion with respect to the fee waiver request, plaintiff failed to exhaust his administrative remedies because "he has not yet paid the required fees or narrowed his request to the first two-hours of searching and the first 100 pages of records, which the DOJ's regulations would allow him to receive for free." The court also comments that plaintiff's "argument about the adequacy of the search is also unexhausted because there is no basis in the record upon which any court could evaluate the search at this time."

Benoit v. IRS, No. 09-242 (S.D. Cal. Sept. 20, 2010) (Houston, J.). The court dismisses plaintiff's action for lack of subject matter jurisdiction because plaintiff's complaint, filed before the deadline for the IRS's response to his administrative appeal, "divested the agency of its ability to provide a record for the Court and was premature." With respect to plaintiff's argument that he was entitled to file suit ten days after submitting the appeal because he requested expedited processing of his request, the court finds that the IRS had twenty days to respond because his administrative appeal "does not include any discussion of [his] request for expedited processing," and that he failed to "follow the procedure required for requests for expedited processing" set forth in the agency's regulations.

Hines v. United States, No. 09-1949, 2010 WL 3488252 (D.D.C. Sept 7, 2010) (Urbina, J.). As a preliminary matter, the court holds that "the exhaustion requirement is a prudential consideration, not a jurisdictional prerequisite, and therefore a plaintiff's failure to exhaust does not deprive the court of subject-matter jurisdiction," "[b]ut [that] as a prudential consideration, the exhaustion requirement may still bar judicial review if both the administrative scheme at issue and the purposes of exhaustion support such a bar." Here, the court finds that plaintiff failed to exhaust his administrative remedies because he "does not dispute that he failed to pay the assessed fee before filing this lawsuit, and there is no indication that he sought a fee waiver from the agency and was denied" or that he "sought to [administratively] appeal the matter."

Lewis v. DOJ, No. 09-0746, 2010 WL 3271283 (D.D.C. Aug. 19, 2010) (Walton, J.). The court concludes that plaintiff failed to exhaust his administrative remedies with respect to three requests made to DEA. The court rejects plaintiff's arguments that his failure to exhaust "'presented no risk of undermining the purposes and policies underlying the exhaustion requirement.'" As to the three requests for which DEA provided no substantive response until after the filing of the lawsuit, the court finds "it is not reasonable to expect the plaintiff to exhaust his administrative remedies by filing an appeal . . . and the law does not require him to do so." Additionally, the court determines that plaintiff failed to exhaust his remedies with DOJ's Civil Division because he did not submit a proper request. "The plaintiff's [Federal Tort Claims Act] claim does not constitute a proper FOIA request because it neither demands the disclosure of agency records nor describes the records sought."

United States v. Medley, Nos. 04-304, 04-480, 2010 WL 3220659 (S.D. Tex. Aug. 13, 2010) (Jack, J.). The court denies plaintiff's motion to obtain a copy of his case file pursuant to the FOIA. "[T]o the extent [plaintiff] is seeking information under the FOIA from the U.S. Attorney used in the prosecution of the federal charges against him, his request under the FOIA is not properly before this Court because there is no evidence that [plaintiff] has requested the documentation from the U.S. Attorney and been refused."

Wilson v. DOT, No. 09-1748, 2010 WL 3184300 (D.D.C. Aug. 11, 2010) (Collyer, J.). Plaintiff failed to exhaust his administrative remedies with respect to two requests because he did not appeal to the appropriate "DOT official for processing appeals" as required by the agency's FOIA regulations. The court holds that plaintiff's complaints lodged with several DOT offices and his request for mediation were insufficient to exhaust his administrative remedies.

Kemmerly v. U.S. Dep't of the Interior, No. 07-9794, 2010 U.S. Dist. LEXIS 75622 (E.D. La. July 26, 2010) (Berrigan, J.). The court concludes that it lacks jurisdiction to review plaintiff's FOIA claims with respect to three of his requests. The court notes that plaintiff appealed one request based on DOI's failure to timely respond, but since he did not "resolve[] [the] fee issues as is required before his request could be processed," his administrative appeal "was properly closed according to DOI regulations." Additionally, the court finds that plaintiff's decision to wait one year for DOI to respond to two administrative appeals before filing a lawsuit on the underlying requests "prevents him from alleging constructive exhaustion of administrative remedies."

Schwarz v. DOJ, No. 10-0562, 2010 WL 2836322 (E.D.N.Y. July 14, 2010) (Cogan, J.). The court determines that plaintiff's failure to file an administrative appeal in connection with her FOIA requests to the Coast Guard and the FBI "does not affect the Court's subject matter jurisdiction." The court further finds although plaintiff's claims against those agencies could be dismissed for failure to exhaust, "the existence of subject matter jurisdiction does not make dismissal on that ground mandatory." Instead, the court concludes that it is appropriate to adjudicate the case on the merits, because "[t]here are no prudential reasons for avoiding a final resolution of plaintiff['s] claims." The court notes that to hold otherwise "would create the anomalous situation" whereby claims against the Coast Guard and the FBI could be dismissed without prejudice, but claims against DOJ "leave the potential for a dismissal with prejudice" since plaintiff is deemed to have exhausted her claims against that third defendant.

Mosby v. Hunt, No. 09-1917, 2010 WL 1783536 (D.D.C. May 5, 2010) (Bates, J.). Because the administrative appeal of one of plaintiff's requests resulted in a remand to BOP for further processing, "the Court will enter judgment for defendant on this claim without prejudice to plaintiff's filing either a new civil action or a motion to reopen this action after he has exhausted his administrative remedies."

Tibbs v. Sebelius, No. 09-773, 2010 U.S. Dist. LEXIS 42464 (S.D. Ohio Apr. 30, 2010) (Marbley, J.). Even if the court did not dismiss plaintiff's FOIA action for failure to name a proper party defendant, his claim would be dismissed for failure to exhaust his administrative remedies. There is no record of plaintiff having filed an administrative appeal of HHS's initial response to his FOIA request.

Saldana v. BOP, No. 08-1963, 2010 WL 1656862 (D.D.C. Apr. 27, 2010) (Bates, J.). Because plaintiff was found to owe $140 in search fees to defendant EOUSA that he had agreed to pay in connection with a previous FOIA request, under DOJ regulations, "EOUSA is entitled to refuse to do any more work on any requests from [plaintiff] until he has paid the $140 in arrears." Plaintiff's argument "that because he reformulated his request, the agency's failure to respond is illegal" is "frivolous," as plaintiff's reformulations expanded, rather than narrowed his original request.

Similarly, when defendant BOP informed plaintiff of an estimated search fee of $392 associated with his request, he did not modify his request in a way that would reduce the fee estimate. Thus, plaintiff did not exhaust his administrative remedies as to defendant BOP either.

Conversely, because plaintiff did not agree to pay a copying fee for certain USMS records, defendant USMS cannot claim that he has failed to exhaust his administrative remedies. Plaintiff "is free to decline an offer to copy records he does not want." This decision on plaintiff's part "does not deprive him of his right to challenge the adequacy of the search that produced [these records] or to assert challenges with respect to the two other requests he directed to the USMS."

Taitz v. Obama, No. 10-151, 2010 WL 1525030 (D.D.C. Apr. 14, 2010) (Lamberth, C.J.). Plaintiff failed to exhaust her administrative remedies. She filed her complaint prematurely, less than 20 business days after defendant Social Security Administration received her administrative appeal of the agency's response to her initial request.

Kenney v. DOJ, No. 07-1989, 2010 WL 1242273 (D.D.C. Apr. 1, 2010) (Friedman, J.). As to plaintiff's 2004 request, the FBI responded by informing plaintiff that he would be required to submit privacy waivers or proof of death for the individuals about whom he sought records. "[P]laintiff had two options for proceeding: he could either have complied with the letter by submitting the waivers and/or certificates, or he could have responded and contested the FBI's position that submitting waivers or death certificates was required. . . . [However,] he failed to respond to the letter in any fashion. Plaintiff thus failed to exhaust his administrative remedies. While plaintiff now maintains that he should not have been required to resubmit privacy waivers for individuals who had already signed waivers for an earlier request, he has not presented this argument to the FBI through the administrative process. For the Court to consider plaintiff's argument here without allowing the FBI to address it through the administrative process 'would undercut "the purposes of exhaustion. . . ."'"

King v. DOJ, No. 08-1555, 2010 WL 935420 (D.D.C. Mar. 17, 2010) (Kennedy, J.). It is undisputed that plaintiff has not paid the search fees required in order for the DEA to search 29 possibly responsive files. Thus, he has not exhausted his administrative remedies as to this part of his request.

Schwaner v. Dep't of the Army, No. 09-0476, 2010 WL 938802 (D.D.C. Mar. 17, 2010) (Sullivan, J.). By not filing an administrative appeal of the Army's initial response to his request, plaintiff failed to exhaust his administrative remedies. The court is "not persuaded" by plaintiff's claim that he never received the Army's response, "because he submits no declaration or other evidence to support his contention that he did not receive a response, whether timely or not, to his FOIA request. . . . Although defendant responded to plaintiff's FOIA request beyond the time limits set forth by statute, its declarant demonstrates that the Army responded before plaintiff filed this civil action. At that point, plaintiff was obligated to exhaust his administrative remedies, and he fails to establish that he did so."

Calhoun v. DOJ, No. 08-1663, 2010 WL 893680 (D.D.C. Mar. 15, 2010) (Walton, J.). It is undisputed that plaintiff has failed to exhaust his administrative remedies because he has not filed a FOIA request. Plaintiff claims that the BOP's confiscation, per agency regulations, of his presentence report constitutes the denial of a FOIA request. "This argument lacks merit."

Strunk v. Dep't of State, No. 08-2234, 2010 WL 931197 (D.D.C. Mar. 15, 2010) (Leon, J.). Because plaintiff did not submit a written authorization from President Obama for release of information pertaining to him, plaintiff cannot be said to have submitted proper FOIA requests to defendants State Department and DHS, because these agencies require such authorizations for third-party requests. As a result, plaintiff has failed to exhaust his administrative remedies.

Ioane v. Comm'r of IRS, No. 09-00243 (D. Nev. Mar. 11, 2010) (Jones, J.). Plaintiff did not mail his request for IRS records to any of the locations designated by IRS regulations as recipients of FOIA requests. As such, plaintiff cannot be said to have submitted a proper FOIA request to the IRS, and therefore did not exhaust his administrative remedies. The fact that the Department of Justice received plaintiff's request is irrelevant to plaintiff's claim against the IRS.

Allen v. EEOC, No. 09-14640, 2010 WL 653329 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished disposition). The district court correctly ruled that plaintiff had failed to show that he exhausted his administrative remedies because he did not establish that he filed an administrative appeal of the EEOC's initial response to his request.

Allen v. EEOC, No. 09-14640, 2010 U.S. App. LEXIS 3779 (11th Cir. Feb. 24, 2010) (per curiam) (unpublished disposition). Plaintiff provided no evidence that he filed an administrative appeal of EEOC's initial response to his request. Thus, the district court correctly concluded that plaintiff did not exhaust his administrative remedies.

Thomas v. Comptroller of the Currency, No. 09-794, 2010 WL 532063 (D.D.C. Feb. 16, 2010) (Kennedy, J.). The court finds that plaintiff constructively exhausted his administrative remedies. It is undisputed that defendant did not respond to plaintiff's request within the statutorily mandated deadline, and that plaintiff did not receive two follow-up letters sent by defendant to him. Thus, under defendant's own regulations, plaintiff exhausted his administrative remedies.

McKevitt v. Mueller, No. 09-3744, 2010 WL 532508 (S.D.N.Y. Feb. 16, 2010) (Koeltl, J.). "This case does not arise under the FOIA and thus there is no jurisdiction under the FOIA, because the FOIA administrative process was never used. The plaintiff never filed a FOIA request under the DOJ's procedures for such requests. . . . The plaintiff did not make a FOIA request, have it denied, and then appeal in the DOJ. Rather, he sought evidence under the Hague Evidence Convention. The Government declined to produce documents under the rationale of FOIA exemptions, but the Government's response was not a response to a FOIA request because no such FOIA request was ever made." Additionally, "the plaintiff's argument that the DOJ failed to respond timely is unavailing. The plaintiff did not file a FOIA request, and therefore the FOIA's time for response provision was never triggered." Furthermore, "[t]he defendants are plainly correct that even if the plaintiff had standing, there has not yet been administrative exhaustion and the plaintiff cannot sue at this time."

Sterrett v. Dep't of the Navy, No. 09-2083, 2010 U.S. Dist. LEXIS 4046 (S.D. Cal. Jan. 20, 2010) (Gonzalez, C.J.). As to plaintiff's request for the background material, she has not exhausted her administrative remedies under the Privacy Act because she failed to comply with the Navy's regulations regarding Privacy Act requests.

United States v. Robertson, No. 85-112, 2010 WL 234854 (E.D. Cal. Jan. 14, 2010) (Wanger, J.). Plaintiff has made no showing that the bond he seeks is a federal agency record "or that he has in any way complied with the administrative requirements of FOIA."

Gadd v. United States, No. 08-04229, 2010 WL 60953 (E.D. Ark. Jan. 5, 2010) (Wright, J.). Because plaintiff did not file an administrative appeal from defendant's denial of his request for records, and did not file his complaint at a time when he had a claim for constructive exhaustion, he has not exhausted his administrative remedies.

Goddard v. Whitmer, No. 09-404, 2010 U.S. Dist. LEXIS 1067 (E.D. Ky. Jan. 6, 2010) (Hood, J.). Plaintiff's complaint must be dismissed both because he did not exhaust administrative remedies and because federal courts are not subject to the FOIA.

Tyree v. Hope Village, Inc., No. 09-2445, 2009 WL 5173784 (D.D.C. Dec. 30, 2009) (Sullivan, J.). Even if plaintiff's complaint were construed as an action against the Department of Justice, the record shows that plaintiff has failed to follow applicable regulations for proper submission of a FOIA request. As such, he cannot be said to have exhausted his administrative remedies.

Brown v. FBI, No. 07-1931, 2009 WL 5102713 (D.D.C. Dec. 28, 2009) (Roberts, J.). The court finds that plaintiff's request for records pertaining to himself "did not constitute a proper FOIA request and did not trigger an agency's obligation to respond" where he sent his request to an office that is not specified in the agency's FOIA regulations and is not an FBI field office. However, notwithstanding the fact that plaintiff's request was improper, the FBI conducted a search, responded to plaintiff's request and provided him with administrative appeal rights. The court notes that plaintiff contends that he never received the FBI's response and that he submitted an appeal challenging the FBI's alleged non-response to his request. Acknowledging miscommunication between the parties, the court nevertheless concludes that because plaintiff "never properly initiated, let alone exhausted, the FOIA administrative process, he is not entitled to maintain a civil action" with respect to the FBI request. The court also finds that plaintiff failed to exhaust his administrative remedies with regard to a request sent to BOP. First, plaintiff submitted his request "to an office of the BOP which did not accept FOIA requests, [and therefore] he had not even initiated this FOIA request at the time he sent his appeal letter." Second, plaintiff failed to submit an administrative appeal of BOP's response before filing the instant civil action.

Manfredonia v. SEC, No. 08-1678, 2009 WL 4505510 (E.D.N.Y. Dec. 3, 2009) (Townes, J.). Plaintiff has failed to make valid FOIA requests that "compl[y] with the applicable regulations." Moreover, he does not allege that he filed administrative appeals of these requests. Though the "Court declines to hold that Plaintiff's failure to exhaust administrative remedies on his FOIA claims deprived the Court of subject matter jurisdiction," it will dismiss plaintiff's complaint for failure to state a claim.

Citizens for Responsibility & Ethics in Wash. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-633, 2009 WL 3859700 (D.D.C. Nov. 19, 2009) (Roberts, J.). Defendant properly informed plaintiff that it was extending by ten days the normal twenty business day deadline to respond to plaintiff's request due to the need to consult with another agency. Though plaintiff argues that the letter, dated March 31, 2009, was not postmarked until April 2, 2009, and was not received by plaintiff until April 6, 2009, the day plaintiff filed the instant complaint, there is no support for its contention "that the operative date of the Board's response should be determined by the date that CREW received it, as opposed to the date that the Board sent it." Thus, defendant "'responded' by placing in the mail written notice regarding its ten-day working extension of its deadline to respond to CREW's request before CREW filed this action." As a result, administrative exhaustion was required before filing suit. Because plaintiff did not exhaust, plaintiff's suit is dismissed.

Pearson v. DHS, No. 08-1885, 2009 WL 4016414 (N.D. Tex. Nov. 17, 2009) (Boyle, J.) (adoption of magistrate's recommendation). "Defendants provide specific evidence to show that Plaintiff did not submit proper FOIA requests, and that Defendants asked him on several occasions to accompany his application with appropriate information and paperwork. . . . They also provide evidence that Plaintiff did not administratively appeal any agency determinations." By contrast, "Plaintiff does not provide specific proof to show actual or constructive exhaustion of his FOIA remedies, dispute his failure to exhaust his FOIA remedies, or show a genuine issue of material fact." Because plaintiff has failed to exhaust his administrative remedies, summary judgment is granted in favor of defendants.

Pailes v. U.S. Peace Corps, No. 08-2214, 2009 WL 3535482 (D.D.C. Nov. 2, 2009) (Bates, J.). "A search of the Peace Corps' FOIA and Privacy Act databases yielded neither an outstanding FOIA or Privacy Act request nor a pending administrative appeal filed by plaintiff." Thus, plaintiff has failed to exhaust his administrative remedies and his FOIA claim is dismissed.

Hantzis v. Grantland, No. 08-2190, 2009 WL 3490757 (D.D.C. Oct. 30, 2009) (Kollar-Kotelly, J.). Because DEA acknowledged plaintiff's request before plaintiff added the FOIA claim to his lawsuit, plaintiff has not exhausted his administrative remedies. Thus, plaintiff's FOIA claim is dismissed without prejudice.

Petit-Frere v. U.S. Attorney's Office for the S. Dist. of Fla., No. 09-1732, 2009 WL 3319985 (D.D.C. Oct. 15, 2009) (Roberts, J.). Because defendant informed plaintiff prior to plaintiff's filing of his complaint that the agency was responding to his request, "plaintiff's claim to constructive exhaustion is incorrect." Since plaintiff has not exhausted his administrative remedies, his "lawsuit is premature and not ripe for adjudication in this forum."

Anderson v. Dep't of State, No. 09-569, 2009 WL 3286117 (D.D.C. Oct. 14, 2009) (Huvelle, J.) . Because plaintiff neither paid fees nor appealed the agency's denial of his fee waiver request, he has not exhausted his administrative remedies as to this issue.

Love v. FBI, No. 08-1802, 2009 WL 3193149 (D.D.C. Oct. 7, 2009) (Walton, J.). "There is no genuine dispute on the record before the Court that well before the plaintiff filed this civil action, that the FBI, EOUSA, and DEA had each responded acknowledging plaintiff's FOIA request and indicating either that it would process the request or that it had already done so. There also is no dispute that at the time this lawsuit was filed, the plaintiff had not pursued, let alone exhausted, his administrative remedies. Thus, the plaintiff's claim of constructive exhaustion is without merit, and his lawsuit was prematurely filed and therefore is not ripe for adjudication in this forum."

Latham v. DOJ, No. 08-1745, 2009 WL 3113242 (D.D.C. Sept. 30, 2009) (Roberts, J.). Though the DEA asserts that plaintiff was required to "provide a certificate of identity with an original notarized signature," relevant DOJ regulations do not require the use of a notary. Instead, plaintiff substantially complied with the regulations by certifying under penalty of perjury that he was the individual about whom records were being requested as well as by providing certain personal information about himself. However, plaintiff did not specify which DEA records system or office he believes maintains records on him. "The DEA demonstrates that plaintiff's failure to identify which record system to search or which office might maintain responsive records would require the agency to conduct searches agency-wide." As such, "[p]laintiff's FOIA request does not reasonably describe the records sought and, therefore, is not a proper FOIA request." Because plaintiff has not submitted a proper request, he cannot be said to have exhausted his administrative remedies. Plaintiff's failure to specify the amount of fees he would be willing to pay "is an insubstantial flaw." Under DOJ regulations, "[s]ubmission of the FOIA request itself is considered an agreement to pay up to $25.00 in search and duplication fees."

Truesdale v. DOJ, No. 08-1862, 2009 WL 3088824 (D.D.C. Sept. 29, 2009) (Friedman, J.). As to one of his requests, plaintiff produced a letter denying his administrative appeal of the agency's initial response, thereby establishing that he exhausted his administrative remedies.

Abou-Hussein v. Gates, No. 08-783, 2009 WL 3078876 (D.D.C. Sept. 25, 2009) (Leon, J.). As to portions of plaintiff's Complaint, "there is no factual allegation that he properly submitted an initial FOIA request for those documents. As a result, plaintiff has failed to exhaust his administrative remedies."

Penny v. DOJ, No. 08-1666, 2009 WL 3003248 (D.D.C. Sept. 21, 2009) (Urbina, J.). As to plaintiff's third-party requests, he did not provide the necessary privacy waivers until long after his administrative appeal of his initial request. Because defendant has not had sufficient time to "'authenticate the privacy waivers and begin its search for the third-party information,' . . . it would be premature at this juncture for the court to interfere with the agency's efforts to respond to the plaintiff's requests." Thus, this portion of plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.

McDermott v. Potter, No. 09-0776, 2009 WL 2971585 (W.D. Wa. Sept. 11, 2009) (Lasnik, J.). Plaintiff failed to exhaust his administrative remedies where he verbally requested a copy of a mail processing plan during a labor/management meeting, but never submitted a proper FOIA request for the documents.

Jones v. DOJ, No. 07-852, 2009 WL 2873172 (D.D.C. Sept. 9, 2009) (Kennedy, J.). "Plaintiff has neither committed to paying the fees [that he owes on his request] 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 [of his multiple requests into one], 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."

Moore v. Obama, No. 09-5072, 2009 WL 2762827 (D.C. Cir. Aug. 24, 2009) (unpublished disposition) (per curiam). "It is undisputed that appellant failed to exhaust his administrative remedies regarding his requests for documents . . ., and the district court correctly held that appellant was required to exhaust administrative remedies before filing suit under the Freedom of Information Act."

Kroposki v. FAA, No. 08-01519, 2009 WL 2710223 (D. Conn. Aug. 26, 2009) (Thompson, J.). As to some of plaintiff's requests, he has failed to exhaust because he failed to allege that FAA withheld documents or that he appealed where FAA did withhold documents. However, plaintiff has sufficiently alleged that he exhausted his administrative remedies as to defendant's decision to charge search fees as to part of his request.

Wadhwa v. VA, No. 09-1835, 2009 WL 2606661 (3d Cir. Aug. 26, 2009) (unpublished disposition) (per curiam). "Under FOIA's constructive exhaustion provision, [plaintiff] was not required to exhaust his administrative remedies if he did not receive a response to his FOIA request before filing suit. Although the VA established that it had in fact responded to [plaintiff's] FOIA request, [plaintiff] did not receive the response."

Calvert v. United States, No. 08-1659, 2009 WL 2584766 (D.D.C. Aug. 24, 2009) (Urbina, J.). The court finds that plaintiff exhausted his administrative remedies. Though plaintiff did not provide a privacy waiver for the subject of the request, DOJ regulations do not require the submission of such a waiver as a condition precedent to the processing of a FOIA request.

Rush v. FBI, No. 09-1557, 2009 WL 2516368 (D.D.C. Aug. 18, 2009) (Walton, J.). "Plaintiff has not permitted the administrative process to be completed by first obtaining an initial determination of a withholding." Instead, he filed this action after agreeing to pay estimated duplication fees and then submitting a "'follow-up request'" to defendant. Plaintiff's action is dismissed for failure to state a claim upon which relief can be granted.

Wells v. U.S. Dep't of Educ., No. 09-456, 2009 WL 2475434 (M.D. La. Aug. 12, 2009) (Brady, J.) (adopting magistrate's report and recommendation). Plaintiffs have not alleged that they exhausted their administrative remedies prior to filing suit.

Neyrges v. FAA, No. 09-50246, 2009 WL 2482065 (5th Cir. Aug. 14, 2009) (unpublished disposition) (per curiam). By failing to appeal from an FAA determination letter (which advised plaintiff of his right to file an appeal with the FAA Administrator), plaintiff failed to exhaust his administrative remedies. The court does not accept plaintiff's contention that the determination letter was the "final ruling" by the FAA, given that it clearly gave appeal rights to plaintiff.

Percy Squire Co. v. FCC, No. 09-428, 2009 WL 2448011 (S.D. Ohio Aug. 7, 2009) (Watson, J.). Although the FCC did not respond timely to plaintiff's FOIA request, it "cured the failure" when plaintiff "agreed to a phased response for the tens of thousands of pages of documents which are responsive to the FOIA request." Thus, plaintiff cannot be said to have exhausted its administrative remedies.

Feinman v. CIA, No. 08-2188 (D.D.C. Aug. 6, 2009) (Sullivan, J.). Plaintiff asserts that her failure to direct her administrative appeal to the proper location does not constitute failure to exhaust her administrative remedies. However, "the burden under the statute and regulations lies with the requester to properly submit the appeal for exhaustion so that any subsequent judicial review may commence." The requirement that agencies make a good faith effort to confer with requesters regarding factual or procedural problems with initial requests does not apply to administrative appeals. Thus, "Plaintiff fails to provide any support for the proposition that the FBI's receipt of an inadvertently faxed appeal triggered an affirmative duty to accept and forward the letter to the [Office of Information Policy]." Furthermore, there was no reason for the FBI to suspect that what it received was sent in error, as opposed to being a duplicate or courtesy copy of a properly filed administrative appeal. Though plaintiff has argued that the court should waive the exhaustion requirement in this case, doing so "would substantially undermine the purposes of exhaustion," depriving the agency of the "opportunity to correct its own mistakes [and] to compile a complete record. . . . Plaintiff has presented no evidence that a full administrative appeals process would be futile, and, by pointing out that she has already submitted a second, identical FOIA request to the agency, essentially concedes that she is not prejudiced by the application of the exhaustion requirement."

Booth v. IRS, No. 09-0637, 2009 WL 2031766 (E.D. Cal. July 9, 2009) (O'Neill, J.). Plaintiff mailed his request to an incorrect address, thereby failing to comply with IRS regulations for making a FOIA request. Thus, he has not exhausted his administrative remedies and cannot invoke the court's jurisdiction over his claim.

Evans v. McConnell, No. 08-97, 2009 WL 1913293 (W.D. Pa. July 2, 2009) (Gibson, J.) (adoption of magistrate's recommendation). Plaintiff did not send his FOIA request and administrative appeal to defendant's correct address, as listed in the Code of Federal Regulations, though he apparently did send his correspondence to an incorrect address provided in a FOIA response letter by the Department of the Army. Because of this, defendant never received plaintiff's request. As such, plaintiff cannot be said to have exhausted his administrative remedies, a condition precedent to his filing suit. Though in his appeal of the magistrate's ruling plaintiff claims to have now exhausted his administrative remedies, even if this is true, "exhaustion only after initiation of suit is not satisfactory."

Am. Small Bus. League v. SBA, No. 09-1098, 2009 WL 1916896 (N.D. Cal. July 1, 2009) (Chen, Mag. J.). SBA's response to plaintiff's administrative appeal was timely, having been made on the twentieth business day following its receipt of the appeal. The court further finds that the response was a sufficient determination of the appeal, holding in effect that the appeal was premature because SBA was still processing additional records. However, because these additional records were eventually released in full, any subsequent appeal by plaintiff would likely have been futile. Thus, defendant's motion to dismiss for failure to exhaust is denied.

Ye v. Holder, No. 09-104, 2009 WL 1649997 (D.D.C. June 12, 2009) (Huvelle, J.). "There is no competent evidence in the record to support [plaintiff's] contention" that defendant ever received plaintiff's FOIA request, and, by contrast, defendant has provided a sworn declaration that it received no such request. Thus, plaintiff's complaint is dismissed without prejudice for failure to exhaust administrative remedies.

Pickering-George v. DEA, No. 08-5227, 2009 U.S. App. LEXIS 12064 (D.C. Cir. June 3, 2009) (unpublished disposition) (summary order). The district court properly ruled that plaintiff was required to exhaust his administrative remedies before filing suit, and that plaintiff did not provide any grounds for the court to reject the DEA declarant's assertion that it had no record of having received a FOIA request from plaintiff.

Rush v. FBI, No. 09-0955, 2009 WL 1438241 (D.D.C. May 21, 2009) (Collyer, J.). Because plaintiff filed his complaint before defendant's deadline to respond to his request lapsed, plaintiff failed to exhaust his administrative remedies.

Moore v. FBI, No. 06-697, 2009 WL 1351404 (W.D. Wis. May 13, 2009) (Crabb, J.). The court will not consider the FBI's actions with regard to plaintiff's other requests. As to one of these requests, plaintiff did not raise the issue in his complaint, so it is not properly before the court. As to another, the request was not even made until after plaintiff had filed the instant suit, thus, it is also not properly before the court. Moreover, plaintiff has not exhausted his administrative remedies as to this request.