*2 NIEMEYER, Before MURNAGHAN MICHAEL, United Judges, and Circuit Judge for the Western States District designation. sitting by Virginia, District of Judge opinion. by published Affirmed NIEMEYER wrote Judge joined. Judge MICHAEL concurring opinion. MURNAGHAN wrote
OPINION
NIEMEYER, Judge: this action to Seymour Pollack filed made request for documents un enforce his Information Act the Freedom der (“FOIA”), The district 552.1 Act, tion, Privacy Pollack also relied on subsequent ac- request and enforcement 1. In his H7 the United nearly States When passed had and Pol- summary judgment motion for response Justice’s lack received no request, to his (1) despite repeated inquiries, “Pollack’s because failure either to he filed this action the fees or to seek the enforce his waiver of them” and And gov- when the (2) ernment Pollack’s failure to complaint exhaust administrative answer his within *3 days, 30 though agree required remedies. Even as we with Pol- § 552(a)(4)(C), government’s delay lack that the Pollack process- in filed a motion for summary judgment. later, Pollack’s any relieved him of Several months 1990, in March requirement Department the to exhaust administrative Justice reme- responded dies, for the first 552(a)(6)(C), time to see U.S.C. affirm Pollack’s re- we quest and to his summary motion for judgment judg- the district court’s because Pollack ’ response ment. In its request, to Pollack’s required refused to the fees for search Department reported the efforts it duplicating costs or to obtain a waiver of made and continuing was to make in search- requirement.
ing for relevant documents. It noted that the search in conducted the Eastern District I Pennsylvania yielded alone had 12 boxes of 23, September On Pollack mailed a documents. Because these boxes contained request for documents under FOIA to the 2,600 pages more than of releasable docu- Attorney United States for the Eastern Dis- ments, noted that dupli- Pennsylvania. trict of requested letter cating $250, costs would exceed and there- your “in documents files that refer to me it fore demanded a pay- minimum advance directly indirectly.” Explaining further, $250, ment of pursuant to 28 C.F.R. Pollack asked for “material involved Unit- § 16.10(g). In response to Pollack’s mo- Pollack, al., 80-00757, ed et States Cr. No. summary tion for judgment, including any all correspondence be- noted further Pollack’s was any Mr. Rohn and prosecutor tween other “650th in line for processing” at the time prosecutorial involved that case with other receipt, and that the making offices.”2 “good faith process effort” to Pollack’s request, along with other “in the 16, 1988, On November Pollack amended they order in which first-in, are received on a his and mailed it to the Executive basis, first-out absent a demonstration of ‘ex- Office for Attorneys United States at the' ceptional urgency’ by requester.” need or Department of Justice. In letter he stat- asked the court stay for a ed that he wanted those documents described pending completion of its efforts. letter, only his earlier from the East- Pennsylvania, ern District of Following but also from a hearing, the district court Nevada, the District of stay, Middle District of requiring Florida, Jersey, the District of periodic New and the reports. to submit Open status Columbia, District of the District of Watergate as well America v. Special Prosecution Force, as (D.C.Cir.1976) (addi- “other sections of the of Jus- Rights Division; tice: Civil Criminal Divi- process requests tional time to grant- sion; Counsel; Legal Office of Dep- Office of ed when exercising diligence due General; uty Attorney Service; responding Marshal to an excessive number of re- etc.” quests existing inadequate are resources Only provisions § 552a. referring of FOIA are 2. Pollack was to one of several federal however, appeal, relevant to this as Pollack's criminal convictions he for his received role- in Privacy properly Act claim was not before the alia, conspiracies involving, various inter mail district court because Pollack did not first ex- fraud, See, e.g., wire fraud and embezzlement. provided haust administrative remedies under Pollack, 91-15646, United States WL No. Privacy Act. As conceded Pollack in oral 1, 1992). July Cir. argument, Privacy equivalent Act contains no provision to FOIA’s "constructive exhaustion"
which,
we
out in this
enabled
the district court to
his FOIA
review
fashion).
timely
II
in a
.The
them
also
Pollack
“remit
ordered
extent that the district court
To the
or fees
under
copying deposits
all
on
failure to exhaust adminis
relied
27, 1990, in
act on or
November
before
trative remedies once
case
infor-
requested
him
to receive
order
court, we
in the district
conclude that
government.”
scheme,
mation from the
statutory
FOIA’s
erred. Under
comply
in a
when an
fails
court,
In a
1990 letter to
December
request, it
proper
to a
fashion
expressed
view that “once- an
insist on the exhaustion of administrative
Court,
in a
is commenced
Federal
remedies,
552(a)(6)(C),
see 5 U.S.C.
unless
‘deposit’
funds
plaintiff does not have
agency responds
before
*4
any
that
or obtain
of
records
to see
Oglesby Dep’t
suit is filed. See
v.
of
requested.” Pollack has steadfast-
have
(D.C.Cir.1990).3
Army, 920
57
Since in
F.2d
legal position throughout
ly maintained this
case
dispute.
request
respond to Pollack’s
before suit was
filed,
by
Oglesby
it
insist
of
reason
completing
In
after
October
that administrative remedies be exhausted.
every
relevant office within the
search
Oglesby,
F.2d at
See
920
Justice,
filed
agen
FOIA
that a federal
commands
summary judgment, con-
a cross-motion for
upon
cy “promptly” make
available
a
records
appeal ad-
tending that Pollack’s
to
failure
request
“reasonably
describes such
ministratively
report-
agency’s
actions as
records and ...
is made in accordance with
agency’s
reports
in the
various status
ed
time,
stating
place,
published rules
fees
a
to
constituted
failure
exhaust administra-
(if any),
procedures to be followed.” 5
and
The
likewise
tive remedies.
552(a)(3).
required
§
agency
is
U.S.C.
to remit
contended that Pollack’s failure
days
working
to
within 10
determine
after
necessary-
to
constituted a failure
ex-
fees
receiving request—unless
grants
a
it
itself an
argued
It
haust administrative remedies.
days—whether
for an additional 10
extension
subject
accordingly
the court
that
lacked
comply
5
to
with the
See U.S.C.
jurisdiction.
matter
552(a)(6)(A)
(B).
agency
§
&
While the
need
request
actually
fulfill
within that
summary judgment in
granting
In
favor of
time,
required
notify
period of
it is
to
Justice,
the district court
requester of its decision whether and how it
stays
a
further
concluded that when
court
decision,
comply,
will
its reasons for that
“permits
judicial proceedings and
the admin-
requester’s right
any
to appeal
adverse
continue,
plaintiff
istrative
agency
to the
head.
5
determination
See
by timely
obligated
keep his
alive
552(a)(6)(A)®. Although reques
§
a
U.S.C.
any
challenge
administrative deter-
efforts
judicial
may generally
ter
seek
review his
minations.” The court also concluded
request only after
FOIA
he has exhausted all
good
keep
request
FOIA
order
remedies,
Spannaus
administrative
see
required
standing,
either
Justice,
Dep’t
824 F.2d
58
promise
the fees or to obtain
fee
(D.C.Cir.1987),
agency’s failure to
re
concluded,
The court
“absent a
waiver.
request
spond to
initial
within the initial
requirements,
comply
fee
waiver of
failure
extension)
10-day
period (plus
10-day
regulations
a failure
with fee
constitutes
-may constitute “constructive exhaustion.”
...
administrative remedies
[and]
exhaust
552(a)(6)(C);
Oglesby,
5
920
See U.S.C.
judicial
request[ ].”
bars
review of his DOJ
552(a)(6)(C) provides
F.2d at 62. Section
“[a]ny
appeal
person making
request
This
followed.
Every
actually responds.”
at 61.
circuit but one which has construed
F.2d
552(a)(6)(C)
States,
(3d
agreed
has
with the D. C.
McDonnell v. United
In this consist September ed of two letters filed in constructive provi exhaustion Despite repeated inquiries November 1988. sion, however, did not relieve Pollack of his him, of Justice did not' statutory obligation pay any and all fees respond 10-day within the time-frame re which the was authorized to collect. 552(a)(6)(A), quired ap requires to follow each proximately later Pollack filed this agency’s requesting, rules for reviewing and *5 request. By action to enforce his reason of 5 paying for documents. See 5 U.S.C. 552(a)(6)(C), justified § Pollack was in 552(a)(3)(B) § (conditioning agency’s the obli seeking judicial appeal enforcement without gation to “promptly make records available” agency seeking to the head or further upon requester the abiding by “published explanation why from the as agency to time, (if stating rules place, the any), fees timely processed. had not been followed”). procedures and to be And the request may That the have been burdensome specifically requires Act government the to agency to the delayed or would have to be publish a fees, uniform schedule of authoriz requests because of other filed earlier does ing each agency to charge a “reasonable” agency not allow the the circumvent con amount for the direct costs of document Rather, provision. structive exhaustion once search, duplication, and review. See 5 U.S.C. agency respond timely an fails to to a re 552(a)(4)(A). § These fees be estimated quest, permits requester FOIA the immedi by agency the advance,, and in demanded but ately to file an enforcement suit and autho only if agency the determines that the fees jurisdiction rizes the district court to “retain will exceed requester or if the $250 has pre agency and allow the additional time to com viously pay failed to in fees a fashion. plete records,” its review of assuming the 552(a)(4)(A)(v). § agency, See U.S.C. Each “exceptional that circumstances exist and however, by must also establish means which agency that exercising diligence the is due in requesters can obtain reduced rates or fee responding request.” to the they if waivers can show that their informa 552(a)(6)(C). tion public will serve interest and primarily not the commercial interest of the The district court in case did requester. 552(a)(4)(A)(iii). See U.S.C. jurisdiction retain Department to allow the of regulations of Justice’s de search, complete Justice additional time to its tailing procedures its FOIA require and and directed the thereafter ments §§ are set forth at 28 C.F.R. 16.1— report progress submitting periodic 16.11, regulations and these have not been reports. status But the that fact further challenged in this case. agency activity taking place on Pollacks’s FOIA while his enforcement action Pollack contends that once he commenced in require court did not Pollack an action in court to enforce his re- appeal administratively each deter quest, he was any obligation of relieved mination as it was in Depart pay described provides for documents. Yet he no stat- reports. ment’s utory status provision, regulation, district or ease which jurisdiction supports over the enforcement proposition. Nowhere pay failure part on Pollack’s based of Justice’s in the or statute fees, the court which provision required, a find can we
regulations untimely, it acts an that when motion. states un- requester with provide obliged to avoid if Pollack wished that noteWe charge. On free of documentation limited at his dis options payment, he had several in all but mandated contrary, are fees Depart pursued. of he none which posal, circumstances, C.F.R. see 28 limited that a provide regulations ment of Justice re- may even be 16.10(a), payment to refor opportunity an given requester further a condition quired in advance agency’s assis request, with mulate office If an agency attention at a tance, needs his information to meet estimates within 16.10(e). Pol will be given request 28 C.F.R. cost. See lower that the fees notify the $25, must a reformulation. attempted the office such higher than lack never need amount the estimated requester Indeed, Attor ignored at least proceed assistance request for his ney’s Office’s farther antici- agrees unless to documents narrowing the search 16.10(e). if, And 28 C.F.R. pated fee. See Further, already possess. Pollack office estimates an as in this applied to the could have $250, may ask likely exceed fee will waiver. or even a fee De fees for reduced payment “an advance requester to make provide for regulations partment of Justice fee estimated up the entire an amount seg arrangements when such request,” ex- beginning before “likely contribute requests are ments of history of requester “with cept where understanding ... significantly public satisfactory as- provides payment” prompt primarily [are] paid. 28 C.F.R. the fee will be surance requester.” interest *6 commercial added). Finally, (emphasis 16.10(g)(1) § 16.10(d)(1); see also C.F.R. previously “has failed when 552(a)(4)(A)(iii). judgment make no We days of the fee within accéss pay a records in this case Pollack’s to whether billing,” date refuse standard; only we qualify under might request and processing continue pursue made no effort that Pollack note accept new refuse to option. requester makes advance requester, until plus any fees owed interest. payment of Act is of Information the Freedom While 16.10(g)(2). C.F.R. public access to meaningful provide tool case, Department of Jus In this orderly be access “must government, such noted to Pollack communication tice’s first disrupt unconstrained as not so likely exceed his would
that fees for daily Ethyl See business.” government’s an requested advance and therefore $250 EPA, Cir. Corp. v. C.F.R. See payment $250. 1994). procure hundreds Pollack’s effort the ad not make 16.10(g)(1). Pollack did appar perhaps documents thousands so, do payment, promise did vance for the paying intent of ently without plans no said that explicitly in fact duplicating the docu recovering and cost on, From that pay such fees. ever to disruption of which close to the strikes ments of Justice all offices within wishes to Ethyl. If Pollack spoke we processing Pol authority to cease had the request, he request or file a his new revive 16.10(g)(2). 28 C.F.R. lack’s so, only in accordance but be able to do process Instead, Department continued the ap of FOIA and requirements successfully peti request and ing regulations. plicable direct for an order district court tioned the' required fees. When pay the judgment of the given, the the reasons For efforts completed its Department had court is district Depart pay, the still refused and Pollack judgment AFFIRMED. summary a motion for ment filed MURNAGHAN, Judge,
concurring:
I constructively concur that Pollack had appeals exhausted his administrative so prevailed should, point, on that as indeed he
given the extreme dilatoriness with which the responded to his re-
quests. Taking acting over a is not promptly. .
Yet, I also concur that Pollack’s refusal to arrange for obligations satisfaction of his fee victory Department. has led to a for. the It proud is not of. Pollack’s rights FOIA, well within were under Department’s acknowledge, failure to respond, never mind to them promptly, met spirit neither the letter nor the stat- ute. .
Still Pollack the fees.. (or annoyance His at the treatment more non-treatment) accurately receiving from the of Justice is
understandable but wrongs “two don’t make right.” D’Alessio,
ARGUED: Donna M. Asst. *7 Defender, Baltimore, Federal MD, Public for appellant. Ira -Oring, Lee Atty., Asst. U.S. Baltimore, MD, UNITED America, appellee. STATES of for ON BRIEF: Plaintiff-Appellee, Bredar, Defender, James K. Federal Public Baltimore, MD, appellant. Lynne A. Battaglia, Atty., Bennett, Jamie M. STEWART, Defendant-Appellant. Gilbert Atty., Baltimore, MD, Asst. U.S. appellee. No. 94-5183. MURNAGHAN, NIEMEYER, Before United States Appeals, MOTZ, Court of Judges. Circuit
Fourth Circuit. Vacated .published' and remanded by Argued Nov. opinion. Judge MURNAGHAN wrote the majority Judge Decided MOTZ March
joined. Judge NIEMEYER wrote a dissenting opinion.
OPINION MURNAGHAN, Judge: pled Gilbert guilty charge Stewart to a possessing in December of 1992 firearm