Schmitz v. DOD Off. of Inspector Gen., No. 21-415, 2022 WL 1572245 (E.D. Va. May 18, 2022) (Ellis, J.)

Schmitz v. DOD Off. of Inspector Gen., No. 21-415, 2022 WL 1572245 (E.D. Va. May 18, 2022) (Ellis, J.)

Re:  Request for records concerning Joint Enterprise Defense Infrastructure ("JEDI") cloud procurement

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Exhaustion of Administrative Remedies:  "'[B]efore commencing litigation, a requester must ordinarily exhaust administrative remedies by appealing an issue through the FOIA administrative process following an initial adverse determination by the agency.'"  In this case, the court notes that "[i]t is undisputed that plaintiff has failed to exhaust administrative remedies relating to any of his three FOIA requests, as required by the statute."  However, the court acknowledges that "[t]his does not end the analysis[.]"
  
  To that end, plaintiff argues that the "exhaustion doctrine is inapplicable to [the] case[.]"  "First, plaintiff argues that administrative exhaustion is a prudential requirement, but not a jurisdictional one, which courts should decline to apply when application of the exhaustion requirement would frustrate the purposes of FOIA."  "Second, plaintiff argues that administrative exhaustion was not required in this case because exhaustion was futile where an appeal was certain to result in an adverse decision from DoD's Inspector General."  "Third, plaintiff argues that the production of additional documents in the course of litigation, as plaintiff alleges occurred here, moots the exhaustion requirement."
  
  The Court observes that "[e]very denial of a FOIA request, from the requestor's point of view, is a frustration of the purposes of FOIA and hence, by this argument, exhaustion would never be required."  The court notes that "[the] FOIA's exhaustion requirement serves several purposes, including 'preventing premature interference with agency processes, affording the parties and the courts the benefit of the agency's experience and expertise, [and] compiling a record which is adequate for judicial review.'"  The court finds that "because plaintiff failed to file an administrative appeal for any of his FOIA requests, the agency has not had a chance to respond to plaintiff's challenges to [the] redactions."  "Accordingly, no record regarding these redactions has been compiled for judicial review."  "Thus, application of the exhaustion doctrine here would further rather than frustrate the purposes of FOIA[.]"
  
  As to plaintiff's second argument, the court holds that it is "wholly unsupported by the factual record."  The court observes that "a party raising the futility argument must 'demonstrate that an adverse decision is a certainty.'"  Yet, "[p]laintiff has not identified any record evidence suggesting that an appeal to DoD's ultimate decision maker was certain to reach an adverse decision regarding the documents produced or the propriety of any redactions."  "Thus, nothing in the factual record demonstrates the futility of an administrative appeal, and the futility exception is therefore unavailable to plaintiff on this factual record."
  
  As to plaintiff's third argument, the court holds that it "improperly imputes the actions of DoD OSD/JS . . . to DoD OIG, the sole defendant remaining in this action."  The court acknowledges that "plaintiff is correct that . . . the government's decision to disclose documents in the course of litigation can moot the exhaustion requirement."  However, "plaintiff's argument fails to acknowledge that there are two different DoD subagencies—DoD OIG and DoD OSD/JS—involved in this litigation."  "It is DoD OIG who is raising the exhaustion defense, and there is no evidence in the record that DoD OIG has produced any new documents to plaintiff in the course of this litigation."
  
  The court concludes that "the undisputed record evidence shows that plaintiff failed to exhaust his FOIA requests through administrative appeals, and therefore defendant's motion for summary judgment must be granted."