Bishins v. HHS, No. 23-614, 2023 WL 5830422 (M.D. Fla. Sept. 8, 2023) (Irick, Mag. J.)

Bishins v. HHS, No. 23-614, 2023 WL 5830422 (M.D. Fla. Sept. 8, 2023) (Irick, Mag. J.)

Re:  Request for certain records concerning plaintiff’s allegation that Medicare “failed to pay for his medically necessary [continuous positive airway pressure] equipment and supplies”

Disposition:  Dismissing plaintiff’s FOIA count

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court relates that “Plaintiff has not alleged that he appealed Defendant’s FOIA response, so Plaintiff has not actually exhausted his administrative remedies.”  “However, Plaintiff argues that he has constructively exhausted his administrative remedies because, although Defendant did respond to Plaintiff’s request and provide documents, Defendant did not comply with the 20-day response period specified in § 552(a)(6)(A).”  The court finds that “[w]here a party has deliberately chosen to wait for a proper response from the agency after initial delay, actual exhaustion must occur before a federal court has jurisdiction to review challenges to administrative action under FOIA.”  “So, on these facts, Plaintiff must have actually exhausted his administrative remedies before coming to court; Plaintiff has not alleged that he has”.”