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Rosenberg v. U.S. Dep't of Immigration and Customs Enforcement, No. 12-452, 2013 WL 3791461 (D.D.C. July 22, 2013) (Kollar-Kotelly, J.)

Re: Request for records related to raid of meatpacking plant and subsequent prosecution of plaintiff's client, the manager of the plant Disposition: Granting defendant's motion for summary judgment because plaintiff failed to exhaust his administrative remedies
  • Exhaustion: The court holds that plaintiff failed to exhaust his administrative remedies before filing suit.  "Plaintiff filed suit just three days after ICE received his appeal and before the agency had the opportunity to consider any of the Plaintiff's substantive arguments regarding the scope of the agency's search, applicability of certain withholdings, and need for a Vaughn index."  "The Plaintiff filed suit before the agency issued a final determination on the merits of the appeal, and weeks before the agency was required by statute to issue a final determination, thus denying the agency the opportunity to review its initial determination, correct any errors, or create an adequate record."  The court further remarks that "[a]ssuming arguendo ICE's March 22, 2012 letter amounted to a denial of a request for expedited consideration of Plaintiff's appeal, at best the Plaintiff has exhausted his administrative remedies as to the request for expedited treatment of his appeal." The court declines to read a futility exception into the exhaustion requirement.  "The fact that the agency has elected to await the Court's disposition of the present motions before drafting a Vaughn index or otherwise reconsidering its response to the Plaintiff's request does not show futility."  "The agency . . . has indicated that it is willing to produce a Vaughn index and reconsider certain issues if additional information is provided by Plaintiff."  The court also rejects plaintiff's argument that the court should excuse his failure to exhaust because he will be unable to use the documentation for a motion to vacate his client's sentence if he does not receive the documentation quickly.  "The plaintiff was complicit in the delay that prevented [his client] from utilizing any documents from ICE as part of [his client's] petition for a writ of certiorari."  The court notes that "Plaintiff omits the fact that rather than file suit after ICE failed to initially comply with the statutory deadlines, he waited over five months for the agency to respond."  "Once the agency issued its final response, the Plaintiff waited a month before filing his appeal and the Plaintiff did not perfect service of process until two months after filing the Complaint in this case."
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Exhaustion of Administrative Remedies
Updated August 6, 2014