Nelson v. U.S. Army, No. 12 C 4718, 2013 WL 5376650 (N.D. Il. September 25, 2013) (Pallmeyer, J.)

Wednesday, September 25, 2013
Re: Request for records concerning any nongovernment organizations that paid the United States Army for use of its computer network testing facility Disposition: Granting defendant's motion in part and denying defendant's motion in part
  • Litigation Considerations, Exhaustion of Administrative Remedies:  First, the court denies "[d]efendant's motion for summary judgment . . . as it relates to Plaintiff's 2008 FOIA request" because "[t]he parties do not dispute that Plaintiff has exhausted his administrative remedies regarding his 2008 FOIA request."  Second, the court grants "[d]efendant's motion for summary judgment . . . as to Plaintiff's 2007 and 2009 FOIA requests" because "[p]laintiff failed to pursue appellate review from the head of the agency" and, therefore, "has failed to actually exhaust his administrative remedies under the FOIA."  The court explains that "[r]egardless of the timeliness of [defendant's] initial response to Plaintiff's FOIA requests, Plaintiff has also failed to constructively exhaust his administrative remedies, as Defendant issued its [] decision, appealable to the Secretary of the Army, prior to Plaintiff's filing suit."  "As a result, the FOIA requires Plaintiff to complete the administrative appeal process prior to seeking judicial review."  Third, that court finds that "Defendant is entitled to summary judgment . . . as it relates to Plaintiff's 2012 FOIA request" because "[r]egardless of whether [plaintiff] has constructively exhausted his administrative remedies . . . he is not entitled to judicial review."  The court explains that "Plaintiff is statutorily obligated to pay all fees which [defendant] is authorized to collect, and constructive exhaustion does not relieve him of this obligation."
District Court
Litigation Considerations
Updated August 6, 2014