Corbett v. TSA, No. 23-55713, 2024 WL 4128829 (9th Cir. Sept. 10, 2024) (Christen, J.)

Corbett v. TSA, No. 23-55713, 2024 WL 4128829 (9th Cir. Sept. 10, 2024) (Christen, J.)

Re:  Requests for records concerning creation or maintenance of “MyTSA” mobile applications, as well as two separate alleged incidents involving TSA personnel

Disposition:  Vacating district court’s dismissal of plaintiff’s claims; remanding case

• Litigation Considerations, Exhaustion of Administrative Remedies:  The Court of Appeals for the Ninth Circuit relates that “[t]he question of first impression presented by this appeal is what happens when an agency misses its statutory deadline and responds to a FOIA request only after the requester files suit.”  “If the plaintiff remains dissatisfied with the agency’s response, should she still be required to pursue an administrative appeal rather than litigating the dispute in federal court?”  “The district court answered in the affirmative.”  “[The court] reach[es] the opposite conclusion for reasons explained below, so [it] vacate[s] and remand[s] for further proceedings.”  The court finds that “[t]he text of FOIA does not answer this question.”  “In fact, FOIA’s language ‘does not expressly require exhaustion’ at all.”  “Nevertheless, courts have long recognized that ‘[e]xhaustion is generally required as a matter of preventing premature interference with agency processes.’”
  
  “Only a few courts have addressed the question presented by this appeal.”  “One of them is the Fourth Circuit, and we find its reasoning persuasive.”  “In Pollack v. Department of Justice, [49 F.3d 115, 119 (4th Cir. 1995), cert. denied, 516 U.S. 843, 116 S.Ct. 130, 133 L.Ed.2d 78 (1995),] the Fourth Circuit held that ‘once an agency fails to respond timely to a request,’ the requester has constructively exhausted, and ‘FOIA permits the requester immediately to file an enforcement suit.’”  “If an agency responds after a suit is initiated, the plaintiff is not required to exhaust the agency’s administrative appeal process.”  “In reaching this result, Pollack examined the FOIA provision that allows for constructive exhaustion, . . . and noted that it reflects Congress’s expectation that an agency that has answered a FOIA complaint might also engage in ongoing communication with a requester after the court assumes jurisdiction.”  “After considering this provision of FOIA, the Fourth Circuit determined that ‘it was error for the district court to conclude that it was somehow deprived of jurisdiction’ when [that plaintiff] failed to administratively appeal after he had commenced litigation, because [that plaintiff] had satisfied the constructive exhaustion provision in § 552(a)(6)(C)(i) before he filed suit.”  “[The court] agree[s] that § 552(a)(6)(C)(i) contemplates further exchanges between agencies and FOIA requesters after a court assumes jurisdiction over a contested FOIA request, and Congress plainly provided that a district court may retain jurisdiction and permit an agency additional time to respond if the agency shows exceptional circumstances.”  “Nothing in the statute, nor in our precedent, suggests that FOIA permits agencies to miss the initial twenty-day deadline and then require requesters to administratively exhaust by providing tardy responses after requesters have filed suit to enforce the rights that Congress guaranteed in FOIA.” “Like our circuit, the D.C. Circuit requires exhaustion where agencies respond to FOIA requests after the twenty-day statutory deadline but before requesters file suit.”  “The D.C. District Court has noted that ‘the D.C. Circuit has not extended this principle to permit an agency to cure its failure to respond after the requester has filed suit, thereby “un-exhausting” a claim that was exhausted,’ . . . and earlier cases from the D.C. District Court are in accord.”
  
  “[The court] agree[s] with the position taken by these courts and hold that once a FOIA suit is properly initiated based on constructive exhaustion, an agency’s post-lawsuit response does not require dismissal for failure to exhaust.”  “As [the court has] explained, exhaustion is a prudential consideration rather than a jurisdictional one, . . . and FOIA permits district courts limited discretion to require exhaustion only if an agency shows that exceptional circumstances warrant it.”  “Rather than dismissing the complaint, a district court should stay its proceedings where it finds that an agency has shown that exceptional circumstances warrant requiring exhaustion.”  “‘Congress expressed a clear intent to ensure that FOIA requests receive prompt attention from the applicable agencies.’”  “Requiring administrative exhaustion after a post-lawsuit agency response would undermine this express congressional objective and could even provide an incentive for agencies to forgo responding unless and until requesters file suit.”  “By contrast, narrowing an agency’s ability to invoke exhaustion in the circumstances presented here will incentivize agencies to respond within the timeframe Congress envisioned.”