Anthony v. BOP, No. 22-01558, 2023 WL 3600230 (D.D.C. May 23, 2023) (McFadden, J.)

Anthony v. BOP, No. 22-01558, 2023 WL 3600230 (D.D.C. May 23, 2023) (McFadden, J.)

Re:  Request for records concerning correctional officer’s alleged misconduct

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “BOP moves for summary judgment on the primary basis that [plaintiff] did not exhaust administrative remedies before suing.”  The court explains that “courts in this district have held that exhaustion is not required before a requester may sue over an agency denial of expedited processing.”  “This is so because a different part of FOIA provides that ‘agency action to deny . . . a request for expedited processing . . . shall be subject to judicial review.’”  “Courts have held this to be an explicit jurisdictional grant over such claims, whether or not the requester exhausted.”  “A few textual clues bolster that reading.”  “First, this subsection appears just before a jurisdiction stripping provision.”  “That subsection provides that a court ‘shall not have jurisdiction over a denial of expedited processing ‘after the agency has provided a complete response to the request.’”  “The logical inference is that the provision before grants jurisdiction in all other scenarios.”  “Second, the actual and constructive exhaustion provisions pertain to an ‘adverse determination, . . . which refers back to the agency’s decision ‘whether to comply with [a FOIA] request’ or not . . . .”  “That section most naturally refers to whether or not the agency will produce documents at all, not the speed with which it will process them.”  “BOP hangs its hat on the contention that [plaintiff] failed to exhaust administrative remedies for the October letter.”  The court finds that “[a]ll the October letter did was deny [plaintiff] expedite and inform him that he was in the normal processing queue.”  “But BOP does not acknowledge, let alone distinguish, the authorities just discussed holding that requesters need not exhaust denials of expedite requests.
  
  “In any event, [plaintiff] swears he never received the letter.”  “In fact, [plaintiff] claims he is ‘very familiar’ with FOIA and ‘would not have’ sued BOP had he timely received the October letter.”  “Other courts have found in analogous circumstances that such sworn statements create a genuine issue of material fact as to whether the requester truly failed to exhaust.”  “BOP also argues that [plaintiff] failed to exhaust after its July 2022 production of six records to him.”  “But the cases it cites hold that exhaustion is generally required when an agency produces documents to a requester before he has sued.”  “That context differs from the in medias res situation here.”  “Recall that at this point, [plaintiff’s] suit had been pending for about eight months.”  “Because FOIA’s exhaustion requirement is prudential rather than jurisdictional, the Court must evaluate whether the ‘purposes of exhaustion’ support barring suit at this point.”  “Those purposes are ‘preventing premature interference with agency processes’ and allowing the agency ‘to make a factual record to support its decision.’”  “The second purpose is obviously not served because [plaintiff] has run out of time to exhaust.”  “Because the 90-day window has passed, any internal agency appeal would be rejected and BOP could make no further factual record.”  “In short, the purposes of exhaustion are not served by requiring [plaintiff] to pursue a futile administrative appeal.”
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “BOP also contends that [plaintiff’s] suit is moot as to the four records it produced to him in full.”  “With this, the Court agrees.”  “While this may be a different case if [plaintiff] had contested the adequacy of their search, . . . he does not.”  “It is ‘undisputed that [BOP] has produced fully’ four of the documents [plaintiff] sought.’”  “Still, BOP has not shown that it is entitled to summary judgment on the rest of his request.”  “BOP did not argue, or support with declarations, that its search was proper, that its asserted exemptions and Glomar response were justified, or that it satisfied its foreseeable harm and segregability burdens.”