FOIA Post (2007): Summaries of New Decisions -- September 2007

November 16, 2007

Summaries of New Decisions -- September 2007

As announced previously by OIP, we are now posting up-to-date summaries of new court decisions. To facilitate their review, each case is broken down by FOIA Exemption or procedural element and internal citations and quotations have been omitted. OIP provides these case summaries as a public service; due to their nature as summaries, they are not intended to be authoritative or complete statements of the facts or holdings of any of the cases summarized, and they should not be relied upon as such.

Set out below are summaries of the court decisions that were received by OIP during the month of September 2007.


Courts of Appeal

1. Berman v. CIA, 501 F.3d 1136 (9th Cir. 2007)

Re: President's Daily Briefs ("PDBs") prepared by CIA for President Lyndon Johnson

• Standard of review: In situations where a district court's ruling turned primarily on questions of fact, the decision will be reviewed for clear error. In cases such as this one, which depended on the district court's interpretation of law, the decision is reviewed de novo.

Exemption 3: The National Security Act is an Exemption 3 statute, and creates a "'near-blanket FOIA exemption' for CIA records." Thus, courts must give "'great deference'" to the CIA when it states that releases may reveal intelligence sources or methods, though the CIA must still submit declarations that establish that withheld records fall within the statute in question. In this case, the CIA's declaration has explained the sensitivity of the information in question as well as the potential damage from releasing it. The CIA is not obligated to "demonstrate to a certainty" the consequences of disclosure. The court will defer to the CIA's judgment on the potential harm from disclosure, since the CIA is "better situated" to make such judgments. Further, plaintiff has sufficient information at his disposal in order to enable him to meaningfully contest CIA's claims. It is acceptable for the CIA to invoke the "mosaic theory" when discussing the consequences of disclosure; it is only "common sense" that the consequences of release be evaluated not only as to a given document, but as to the use such document might be put in combination with other available material. The withheld PDBs are distinct in content and function from other intelligence summaries that are publicly available. Even though the withheld PDBs are forty years old, the CIA has a legitimate interest in withholding them, out of the reasonable fear that a release of documents of this age would weaken the agency's ability to gather intelligence information in the future. Finally, while the documents were appropriately withheld, the court rejected the CIA's claim that the PDBs are themselves a protected intelligence method. According to the court, their existence has been too well documented to sustain such a claim.

District Courts

1. Elec. Privacy Info. Ctr. v. DOJ, No. 06-00096, 2007 WL 2483953 (D.D.C. Sept. 5, 2007)

Re: Records related to Terrorist Surveillance Program

• Summary judgment: Defendants withheld records pursuant to Exemptions 1, 3, and 5. For some of these documents (e.g., notes and drafts, records relating to criteria used for targeting and intelligence successes), defendants have provided sufficient detail about the documents and adequate justification for the withholdings. Summary judgment is granted to defendants on these documents. However, as to other documents, defendants have not provided enough detail for the court to determine the applicability of FOIA exemptions, or whether non-exempt material can be segregated from exempt material and released. For these documents, defendants are ordered to submit new, more detailed Vaughn indices and declarations. Plaintiffs' motion for in camera review is denied without prejudice.

2. Ctr. for Int'l Envtl. Law v. Office of the U.S. Trade Representative, 505 F. Supp. 2d 150 (D.D.C. 2007)

Re: Documents related to negotiations over the Free Trade Agreement of the Americas

• Exemption 1: USTR has not shown "sufficient justification" for classifying the documents at issue. USTR's declarations fail to show that "reduced negotiation flexibility would cause the 'requisite degree of harm'" to American security and economic interests. Declarations are conclusory and do not document the basis for agency's conclusions. Furthermore, even if Exemption 1 is found to apply, USTR must still make a more detailed showing on the question of segregability. USTR is ordered to submit additional declarations addressing the potential harm from release of these documents.

• Waiver: Plaintiff has not shown that publicly disclosed draft contains "same information" as withheld documents.

3. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. DOJ, 503 F. Supp. 2d 373 (D.D.C. 2007)

Re: Records relating to third parties

• Exemption 3: The Privacy Act of 1974 is "not a FOIA exemption upon which DOJ can rely."

• Exemption 5: An agency does not waive the attorney-client or attorney work product privileges by sharing documents with parties with whom it is engaged in a joint prosecution based on common interests. However, the withheld documents were shared with third parties (not just with the party with whom the government was engaged in a joint prosecution) making use of the privilege inappropriate. Furthermore, DOJ's declaration does not sufficiently describe the withheld documents.

• Exemption 6: DOJ has not sufficiently described the nature of the privacy interests at stake, nor has it justified why the records should be "categorically" withheld.

• Exemption 7(C): DOJ has not met its burden of justifying the withholdings under this exemption. "[A] categorical withholding under Exemption 7(C) cannot be justified without further clarification of the subject matter of the records."

• Exemption 7(D): DOJ failed to show that the withheld information relates to a criminal or national security investigation. Furthermore, DOJ has not shown that the information in question was provided by confidential sources.

• Summary Judgment: Both parties' motions denied; DOJ directed to produce further justification.

4. Skrzypek v. Dep't of Treasury, No. 06-1129, 2007 U.S. Dist. LEXIS 64124 (D.D.C. Aug. 31, 2007)

Re: Records related to search of a home

• Adequacy of search: The IRS's declaration is sufficient to establish that its search for records was reasonable, even though no responsive records were located. The declaration also explains why responsive records would have been maintained by the FBI, and not the IRS.

• Exhaustion: Though plaintiff objects to the fee estimate he received from EOUSA, he did not respond to EOUSA's letter which presented him with options for reducing the fee. Payment or waiver of fees, or an administrative appeal of a waiver denial, are required before a court can undertake judicial review of a FOIA claim.

5. Callaway v. U.S. Dep't of Treasury, No. 04-1506 (D.D.C. Aug. 31, 2007)

Re: Records related to plaintiff's criminal case

• Adequacy of search: EOUSA's declaration establishes that except for one item, its search was reasonable and properly limited to the terms of plaintiff's request. Plaintiff has presented no proof to call into question the good faith normally accorded agency declarations. As to remaining item, EOUSA was ordered to file renewed motion. Search conducted by Customs was reasonable and properly limited to the terms of plaintiff's request. Agencies are not required to "'look beyond the four corners of the request for leads to the location of responsive documents,'" nor are they required to retrieve documents which were once, but are no longer, in the agency's possession.

• Exemptions 2 & 7(E): Customs appropriately withheld portions of a Customs' handbook for its Special Agents. The withheld portions contain information concerning internal procedures used in Customs' fraud cases, and their release would enable circumvention because subjects could "modify their behavior in order to avoid detection." These materials are primarily for internal use and do not themselves affect the public.

• Exemption 3: "The fact that witnesses testified at a public trial does not establish that the subject of their testimony is the same as that contained in the grand jury materials" withheld. Plaintiff has not met his "burden of production" on this issue.

• Exemption 7(C): Customs properly withheld names and identifying information of law enforcement officials, administrative support personnel, and other third parties who were of investigative interest or provided information. Plaintiff has failed to provide evidence to support his claim that the information in question here is in the public domain. Furthermore, even if this information had been revealed through trial testimony, this does not mean that the affected individuals lose their privacy interests. Finally, agencies are not required under the FOIA to reveal the names of persons involved in processing FOIA requests.

• Exemption 7(D): Customs' declaration does not support its position that all but one of its sources were given express grants of confidentiality. A renewed motion may be filed as to those sources. One source was appropriately treated as confidential even in the absence of an express grant because he participated in an investigation of narcotics smuggling; in such circumstances confidentiality may be inferred.

• Exemption 7(E): Customs properly withheld "information relating to law enforcement techniques."

• Exemption 7(F): Customs appropriately withheld the identities of those involved in plaintiff's prosecution. Members of the criminal enterprise involving plaintiff remain at large, and release of this information could put the individuals in question at risk of violence. Public interest supports protection.

6. Pennington v. DOJ, No. 06-1808, 2007 WL 2492745 (D.D.C. Aug. 30, 2007)

Re: Employment records concerning Assistant United States Attorney

• Costs/fees: The court dismissed the complaint because defendant voluntarily provided plaintiff with the documents he sought and no judicial relief was necessary. Thus, plaintiff is not a "prevailing party" and is not entitled to recover filing fees or costs associated with this action.

7. People ex rel. Brown v. EPA, No. 07-02055, 2007 WL 2470159 (N.D. Cal. Aug. 27, 2007)

Re: Records from meetings concerning vehicle emission regulations

Vaughn Index: While there is support for defendants' claim that it is premature to require defendants to submit their Vaughn indices prior to filing their motion for summary judgment, in this case the passage of time since the initial request makes it "unfair" that plaintiff should have to wait until defendants' submission of its motion for summary judgment to receive the indices.

8. Elec. Frontier Found. v. DOJ, No. 07-00403 (D.D.C. Aug. 14, 2007)

Re: Documents relating to orders issued by the Foreign Intelligence Surveillance Court (FISC)

• Classified affidavits: Court's review of DOJ's in camera, ex parte classified affidavit filed to support its withholdings is proper under prevailing Circuit law. Indeed, it is "not only permissible, but might be warranted in cases involving national security issues." DOJ submitted a public declaration that described the search for records but also indicated that a detailed description of the responsive records, or even of the volume of responsive records, "'could damage security in precisely the way that FOIA Exemption 1 is intended to prevent.'"

• Segregability: Both of DOJ's declarations contain sufficient specificity for the court to determine that the withheld documents did not contain releaseable portions. Despite absence of express mention of term "segregability" in public declaration or redacted version of classified declaration, other evidence indicates that DOJ "determined that no portion of the information" was segregable. The "mere fact" that some of the rules and procedures pertaining to the FISC are prepared in an unclassified form does not by itself prove that all FISC documents contain segregable elements, nor does the fact that one prior opinion of the FISC was released. The fact that a FISC judge indicated a willingness to release certain documents to members of the Senate does not support a blanket assertion that these documents should be released to the general public.

• In camera review: Because DOJ's declarations provided sufficient detail for the court to rule on the appropriateness of DOJ's withholdings, in camera review of the documents is not necessary. While the court stated that there is great public interest in the documents at issue, when the agency's declarations are acceptable, "'in camera review is neither necessary nor appropriate.'"


Courts of Appeal

1. Trentadue v. Integrity Comm., 501 F.3d 1215 (10th Cir. 2007)

Re: Documents submitted by DOJ IG to the Integrity Committee concerning investigation into death of plaintiff's brother

• Exemption 5: Factual materials are not protected by the deliberative process privilege unless they are inextricably intertwined with deliberative materials or their disclosure would reveal deliberative material. Portions of records that document the history of the OIG investigation into the death of plaintiff's brother must be released. Portions of the document containing the IG's response to the Integrity Committee are largely factual and not deliberative. "[F]actual materials do not become privileged merely because they represent a summary of a larger body of information." Recommendations made during the investigations into the death of plaintiff's brother were appropriately withheld.

• Exemptions 6 & 7(C): Defendant appropriately withheld the names and identifying information of low-level employees who were accused of "serious acts of misconduct." While there is a significant public interest in knowing how defendant handled these allegations, revealing the names of the accused employees "would shed little light on the operation of government." However, defendant should have released portions of the DOJ IG's response that addressed allegations made against individuals specifically accused of wrongdoing by plaintiff. Because these allegations were already part of the public record, disclosure of their names in the IG's response would not invade their privacy interests at all, as they have a minimal privacy interest at stake in the repeated release of their names.

• Segregability: The District Court "erred in refusing to conduct a severability analysis" to distinguish factual material from deliberative material.

District Courts

1. Moayedi v. U.S. Customs and Border Prot., No. 06-1082, 2007 WL 2601408 (D.D.C. Sept. 11, 2007)

Re: First-party request for records pertaining to detention and interrogation at airports

• Adequacy of search: Customs and Border Protection Service's (CBP's) declaration "meticulously explains how it conducted [its] search," and was sufficient to show that CBP's decision to limit its search to the Treasury Enforcement Communications System database was reasonable. CBP's decision to limit its search to its headquarters office, the office to which plaintiff sent his request, was consistent with CBP's published regulations on FOIA requests.

• Exemption 2: CBP appropriately withheld under "High 2" instructions to agency personnel on the subject of observing public behavior for illegal activity. Though this type of activity does have "'some tangential impact on members of the public,'" the instructions are predominantly internal because they detail "'tactics and methods for Customs employees to follow with respect to their official law enforcement duties.'" CBP also correctly withheld under "High 2" information concerning procedures for detentions and interrogations, because disclosure of this information might allow for circumvention of agency regulations. Administrative procedures regarding "operational responsibilities" were properly withheld under "Low 2."

2. Dayton Newspaper, Inc. v. VA, No. 00-235, 2007 WL 2509861 (S.D. Ohio Aug. 30, 2007)

Re: Data fields in VA's Tort Claims Information System (TCIS)

• Procedural: In determining the temporal scope of a FOIA request, agencies may give actual notification of a "cut-off date" to the requester, or may give constructive notice through agency regulations. Here, the VA did neither, so the Court determines that the most logical cut-off date is the date of the VA's final response to plaintiff's request. Thus, even though defendant subsequently gained access to additional responsive documents, it was not obligated to process these documents, since they became accessible outside the temporal scope of plaintiff's request. Plaintiff has provided no evidence to support its claim that the VA had this additional access prior to the cut-off date. The cut-off date is not affected or extended by the VA's compliance with a subsequent Court order. Because the VA's initial response was not inadequate, its compliance with the Court's order did not constitute "a supplemental search requiring a new cut-off date." "'To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.'"

3. Jackson v. FBI, No. 02-3957, 2007 WL 2492069 (N.D. Ill. Aug. 28, 2007)

Re: First-party request for Special Agent applicant records

• Statute of limitations: Complaints under the FOIA are subject to the "catch-all" six year statute of limitations found in 28 U.S.C. § 2401(a). This period begins to run at the time that a requester exhausts his administrative remedies, either "actually" or through an agency's failure to respond within statutory time limits. Because plaintiff's action was filed almost ten years after his administrative remedies were exhausted, the statute of limitations on his claim has "long since run."


Courts of Appeal

1. Jefferson v. DOJ, NO. 07-5021, 2007 U.S. App. LEXIS 22252 (D.C. Cir. Sept. 17, 2007)

Re: Request for OIG records concerning former DOJ attorney

• Appointment of counsel: Except for criminal defendants, appellants are not entitled to appointment of counsel when they have not demonstrated "sufficient likelihood of success on the merits."

• Costs: "Assuming without deciding that a pro se litigant can recover litigation costs," plaintiff is not eligible because he did not "substantially prevail" in his claim.

2. Mendoza v. DEA, No. 07-5006, 2007 U.S. App. LEXIS 22175 (D.C. Cir. Sept. 14, 2007)

Re: First-party request

• Appointment of counsel: Except for criminal defendants, appellants are not entitled to appointment of counsel when they have not demonstrated "sufficient likelihood of success on the merits."

• Exemption 2: The district court correctly ruled that DEA's use of this exemption to withhold certain internal DEA codes, as well as symbol numbers assigned to confidential informants, was appropriate.

• Exemption 3: The district court's ruling that DEA appropriately used this exemption to withhold information obtained by a wiretap (as per the provisions of 18 U.S.C. § 2510) was upheld.

• Exemption 7(A): Information pertaining to an open DEA investigation was appropriately withheld.

• Exemption 7(C): DEA appropriately withheld the names and personal information of various third parties, including law enforcement personnel, government employees, and private individuals involved in the investigation of plaintiff.

• Exemption 7(D): DEA correctly applied this exemption to protect information about confidential informants as well as information provided by informants.

• In camera review: It was not an abuse of discretion by the district court to not conduct an in camera review of the records where the government provided sufficient evidence to show that all reasonably segregable materials had been released.

• Costs: The district court correctly denied costs to plaintiff inasmuch as he had not "substantially prevailed."

District Courts

1. Lamas v. Gonzales, No. 07-3351, 2007 U.S. Dist. LEXIS 70016 (D.N.J. Sept. 21, 2007)

Re: First-party request

• Jurisdiction: Plaintiff's petition for a writ of mandamus directing DOJ to produce the records he requested is denied because he has not shown that he is entitled to such relief. He has other means available to him, and has not demonstrated the existence of any "extraordinary factors" that would entitle him to a writ of mandamus. However, because DOJ's response to plaintiff did not provide sufficient detail describing its effort to locate responsive records, plaintiff's FOIA claim is allowed to proceed.

2. Dourlain v. IRS, No. 05-1174, 2007 WL 2764811 (N.D.N.Y. Sept. 20, 2007)

Re: First-party request for tax forms

• Adequacy of search: The IRS's search was adequate when it was "undisputed" that there was no paper return because plaintiff had "never filed one," and the IRS "substitute for return" was generated by computer and its regulations establish that, for the record in question, the IRS is not obligated to maintain a paper copy. For another form that plaintiff requested, the IRS's declaration established that the form is only rarely generated in paper and that the computerized form provided "contains the same information."

3. Schmidt v. U.S. Air Force, No. 06-3069, 2007 U.S. Dist. LEXIS 69584 (C.D. Ill. Sept. 20, 2007)

Re: Release of records concerning Air Force investigation of "friendly fire" incident

• Exemption 6: In this case, the Air Force properly released records concerning its discipline of an officer involved in a "friendly fire" incident in Afghanistan which resulted in the deaths of several members of the Canadian army. While the plaintiff/subject had a privacy interest in keeping this information confidential, it was outweighed by the strong public interest concerning this highly publicized incident inasmuch as it "gave the public . . . insight into the way in which the United States government was holding its pilot accountable."

4. Tarullo v. DOD, No. 02-644, 2007 WL 2727555 (D. Conn. Sept. 18, 2007)

Re: First-party request

• Attorney fees: Plaintiff is not eligible for attorney fees because he did not benefit from a "judicially sanctioned change in the legal relationship of the parties." Documents produced by DOD in the initial stages were not produced as the result of judicial action. Similarly, documents that were produced during the course of judicially ordered settlement conferences do not qualify because the court's role in these discussions "was insufficient to create the required judicially sanctioned change." While the court did order some documents released to plaintiff, the court's ruling was based on the fact that the plaintiff already possessed original copies of these documents. Thus, he can not be said to have "directly benefit[ted]" from a court ruling.

5. Cowdery, Ecker & Murphy, LLC v. Dep't of the Interior, No. 07-00879, 2007 WL 2701140 (D. Conn. Sept. 14, 2007)

Re: Request for SES Performance Plan documents for senior level Interior official, including employee self-assessment, supervisor's recommendations, and final employee rating

• Exemption 5: Finding that Exemption 5 does not apply to the employee's self-assessment or to his supervisor's recommendations and assessment of his performance because these are not "deliberations or recommendations on Department policy, personnel, or otherwise."

Exemption 6: The employee in question was the "'de facto third in command'" at DOI, which weighs in favor of disclosure. Plaintiff has raised "serious" allegations of wrongdoing, i.e., that the employee in question has acted "in an ultra vires manner, unconstitutionally exceeding his authority;" even though the supporting evidence is "questionable," this, too weighs in favor of disclosure. Furthermore, there is little availability of other means to obtain the information plaintiff seeks. Information related to the performance and assessment of a high ranking agency official sheds light on a government activity, and the information sought is not of a "personal" nature. Thus, the public interest in disclosure outweighs any privacy interest this official might have in these records.

6. Medina v. United States, No. 04-738, 2007 WL 2708593 (E.D. Tex. Sept. 12, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Not improperly withheld/Court orders: Because the responsive records are subject to a federal court order sealing them until a further order of the court, the agency cannot release the records in question. Thus, they were properly withheld.

7. Banks v. Partyka, No. 07-0331, 2007 WL 2693180 (W.D. Okla. Sept. 11, 2007) (adoption of magistrate's recommendation)

Re: First-party request

• Proper party defendant: Plaintiff's claim is directed against an individual BOP employee who allegedly failed to provide plaintiff with records he requested. However, only an agency is a proper party defendant in a FOIA action. By making a claim against an individual employee, plaintiff has failed to state a claim upon which relief can be granted.

8. Smith v. DOJ, No. 03-11639 (D. Mass. Sept. 11, 2007)

Re: First-party request

• Summary judgment: The material facts set forth by defendants are taken as admitted because plaintiff has not opposed defendants' motions for summary judgment. Defendants have established that their searches for responsive documents were reasonable, that their withholding of records was appropriate, and that they have released all non-exempt documents.


District Courts

1. Keys v. DHS, No. 07-465, 2007 WL 2781903 (D.D.C. Sept. 26, 2007) (magistrate judge's opinions)

Re: First-party request

• Adequacy of search: DHS's search was adequate because it used plaintiff's name, social security, and date of birth to search for records in its Master Central Index, "a record system that was likely to produce responsive documents."

• Exemption 2: DHS appropriately withheld special agent identification numbers, computer access numbers used by the Secret Service, internal Secret Service account numbers and e-mail addresses, and the name of a type of investigation used by the Secret Service which is not well-known to the public. Special Agent identification numbers could be used to obtain information about or to impersonate an agent. Internal agency codes are protected under "low 2." Finally, information about undercover operations may be withheld due to the risk to undercover operatives.

• Exemption 7(C): DHS correctly utilized this exemption to withhold identifying information concerning law enforcement agents, as well as information concerning third parties who assisted Secret Service investigations or were the subjects of investigations. "'One who serves his . . . nation . . . is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties.'" Personal information concerning private individuals is also protected by this exemption. In no case has plaintiff identified a public interest that would outweigh the substantial privacy interests at stake.

• Exemption 7(E): DHS properly applied this exemption to withhold information concerning its investigations into counterfeiting activities. Release of this material could assist those attempting to break the law as might also "nullify the future effectiveness" of this technique.

2. People for the Am. Way Found. v. Dep't of Education, No. 05-751, 2007 U.S. Dist. LEXIS 70894 (D.D.C. Sept. 26, 2007)

Re: Documents concerning federally funded school voucher program in the District of Columbia

•Exemption 5: Documents exchanged between DOE and the D.C. Mayor's Office are not inter or intra-agency documents. The D.C. Mayor's Office cannot be considered a consultant to DOE because the Mayor's Office and DOE share ultimate decisionmaking responsibilities for the voucher program. Thus, the Mayor's Office is not "convey[ing information] to DOE[] to unilaterally make ultimate decisions based on the D.C. Mayor's Office's advice." The D.C. Mayor's Office "represents its own constituency." Further, while Klamath holds that entities that seek government benefits at the expense of other parties "certainly" cannot be considered consultants, the Court "does not agree that Klamath stands for the proposition that communications must definitely meet these two criteria to fall outside of Exemption 5's shield from disclosure." Documents exchanged with two private companies that were hired to evaluate the voucher program also do not meet the Exemption 5 threshold test. These companies were not consultants to the government because their goal was to "evaluate" the program, not to "advise" DOE. Furthermore, the two companies "presumably" have an interest in being awarded subsequent contracts, and these contracts are awarded on a competitive basis. To the extent that either contractor offered advice, it was to the Washington Scholarship Fund, and not to DOE directly.

Vaughn Index: The Vaughn index submitted by DOE is insufficient for the Court to determine whether some of the records withheld by DOE were withheld correctly. For these records, DOE must submit a new index which identifies all of the senders and recipients of the documents. Further, for documents in this category that DOE withheld pursuant to the deliberative process privilege, DOE must explain both why these documents are predecisional and deliberative and why it is not possible to segregate out and release portions of these documents.

3. Judicial Watch, Inc. v. DHS, No. 07-506, 2007 U.S. Dist. LEXIS 70446 (D.D.C. Sept. 25, 2007)

Re: Documents related to prosecution of two Border Patrol agents

• Lit Con.: Denying plaintiff's motion for a preliminary injunction seeking immediate release of the documents it requested. Even if plaintiff successfully demonstrated a substantial likelihood of success on the merits (which it has not), it has not shown that either it or the public will suffer irreparable harm if the documents are not disclosed immediately, nor would an injunction advance the public interest. Additionally, granting the injunction would "result in a significant hardship" on defendants because it would force them to conduct a search for records before the Court had the opportunity to decide whether a search is even required for the requested records (which are third-party records). This would be "an inappropriate use of [the Court's] equitable powers." Plaintiff has also not demonstrated the public interest requires immediate disclosure of the requested records.

4. Said v. Gonzales, No. 06-986, 2007 U.S. Dist. LEXIS 70404 (W.D. Wash. Sept. 24, 2007)

Re: First-party requests

• Exhaustion: Plaintiffs failed to exhaust their administrative remedies before filing suit, therefore the Court lacks subject matter jurisdiction. (In all but one case this was because their suit was filed before the agency's twenty-day period in which the time to respond had run; in one case it was because one plaintiff failed to file an administrative appeal from the agency's initial response.) Under prevailing Circuit law, exhaustion is a jurisdictional requirement precedent to seeking judicial review. Subject matter jurisdiction must be judged as of the time of initial filing, and is not affected by subsequent amendments. Even if the exhaustion requirement were considered merely prudential, plaintiffs have not demonstrated that this would be an appropriate case in which to waive the requirement. [posted 11/16/2007]

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