Tereshchuk v. Bureau of Prisons
851 F. Supp. 2d 157
D.D.C.2012Background
- Tereshchuk, a prisoner, filed a FOIA action against the Bureau of Prisons in the D.D.C. seeking records.
- He alleged BOP improperly withheld records on three FOIA requests and constructively exhausted after delayed responses.
- BOP moved to dismiss or for summary judgment, arguing failure to exhaust bars judicial review.
- Tereshchuk sought to file a second supplemental complaint under Rules 15(b) and 15(d) to reflect actual exhaustion for two 2010 requests.
- The court held that the two January 28, 2010 requests were not exhausted because fees were not paid or waived, so those parts were dismissed.
- The August 10, 2009 request was found constructively exhausted due to BOP’s failure to respond timely, so that portion survived for dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether January 28, 2010 FOIA requests were exhausted | Tereshchuk argues exhaustion occurred via OIP letter and appeals. | BOP argues no exhaustion because fees were not paid and no fee-waiver appeal. | Not exhausted; dismissal as to January 28, 2010 requests. |
| Whether August 10, 2009 FOIA request was constructively exhausted | Tereshchuk contends BOP’s late action should not reset exhaustion. | BOP’s late response does not restart exhaustion; the request was timely constructively exhausted. | Constructive exhaustion established; August 10, 2009 claim survives. |
| Whether Rule 15(b) / 15(d) amendments were appropriate or premature | Tereshchuk seeks to conform pleadings to evidence and add exhaustion facts. | Rule 15(b) / 15(d) amendments are premature absent trial and proper exhaustion. | Rule 15(b) amendment premature; Rule 15(d) denial affirmed. |
Key Cases Cited
- Jarvik v. CIA, 741 F. Supp. 2d 106 (D.D.C. 2010) (agency failure to respond within 20 days yields constructive exhaustion)
- Thomas v. Dep’t of Health & Human Services, 587 F. Supp. 2d 114 (D.D.C. 2008) (FDAs letter about fees can be too late; exhaustion standards apply)
- Calhoun v. U.S. DOJ, 693 F. Supp. 2d 89 (D.D.C. 2010) (failure to follow agency FOIA regulations equates to failure to exhaust)
- Antonelli v. BOP, 591 F. Supp. 2d 15 (D.D.C. 2008) (exhaustion includes appealing adverse determinations and paying or waiving fees)
- Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. Cir. 1990) (exhaustion includes avenues provided by FOIA regulations)
- Banks v. US DOJ, 605 F. Supp. 2d 131 (D.D.C. 2009) (failure to pay fees or seek fee waiver constitutes non-exhaustion)
- Jones v. DOJ, 576 F. Supp. 2d 64 (D.D.C. 2008) (exhaustion analysis under Rule 12(b)(6) for FOIA claims)
- Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) (exhaustion prerequisite for FOIA actions)
- Flaherty v. President of the United States, 796 F. Supp. 2d 201 (D.D.C. 2011) (exhaustion is a condition precedent to FOIA actions)