Stephen Yagman v. Michael Pompeo

Filing

FILED OPINION (A. WALLACE TASHIMA, RICHARD A. PAEZ and PAUL L. FRIEDMAN) REVERSED AND REMANDED. Judge: RAP Authoring, FILED AND ENTERED JUDGMENT. [10559962]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEPHEN YAGMAN,
Plaintiff-Appellant,
v.
MICHAEL POMPEO; CENTRAL
INTELLIGENCE AGENCY,
Defendants-Appellees.

No. 15-55442
D.C. No.
2:14-cv-08033PSG-E

OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 9, 2016
Pasadena, California
Filed August 28, 2017
Before: A. Wallace Tashima and Richard A. Paez, Circuit
Judges, and Paul L. Friedman,* District Judge.
Opinion by Judge Paez

*

The Honorable Paul L. Friedman, United States District Judge for
the District of Columbia, sitting by designation.

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YAGMAN V. POMPEO
SUMMARY**

Freedom of Information Act
The panel reversed the district court’s dismissal for lack
of subject matter jurisdiction, based on plaintiff’s failure to
exhaust administrative remedies, of an action against the
Central Intelligence Agency and its director under the
Freedom of Information Act (“FOIA”), seeking records
identifying CIA personnel or affiliates that engaged in
torture; and remanded for further proceedings.
The panel held that federal agencies have a duty to
construe FOIA records requests liberally, and further held
that the district court erred in concluding that plaintiff’s
request constituted a question rather than a request for
records. The panel also held that the flaw with plaintiff’s
FOIA request was its vagueness, and defendants could not
know what records would be responsive.
The panel held that the requirement in 5 U.S.C.
§ 552(a)(3) that a person submitting a FOIA request
“reasonably” what he or she seeks is properly viewed as an
ingredient of the claim for relief, rather than a question of
subject matter jurisdiction.
The panel remanded to the district court with instructions
to allow plaintiff to reframe his request for documents in light
of the panel’s holding and the CIA’s repeated offers to assist
him in formulating a reasonably specific request.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Stephen Yagman (argued), Venice Beach, California; Joseph
Reichmann, Yagman & Reichmann, Venice Beach,
California; Plaintiff-Appellant.
Gerard Sinzdak (argued) and Matthew M. Collette, Attorneys,
Appellate Staff; Stephanie Yonekura, United States Attorney;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.

OPINION
PAEZ, Circuit Judge:
Plaintiff Stephen Yagman filed suit against the Central
Intelligence Agency (“CIA”) and its director1 (collectively,
“Defendants”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, seeking records identifying CIA
personnel or affiliates that have engaged in torture. The
district court held that because Yagman’s request for records
constituted a question that Defendants were not required to
answer, he failed to exhaust administrative remedies. The
court further concluded that exhaustion of administrative
remedies was a jurisdictional requirement, and therefore

1

We have substituted Michael Pompeo for his predecessor, John
Brennan, as Director of the CIA, see Fed. R. App. P. 43(c)(2), but we
agree with Defendants that individual officials are not proper defendants
in a FOIA action, see Drake v. Obama, 664 F.3d 774, 785–86 (9th Cir.
2011) (explaining that FOIA does not apply to individuals, only agencies).
On remand, the district court should dismiss Pompeo as a defendant in this
case.

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dismissed Yagman’s complaint for lack of subject matter
jurisdiction. We have jurisdiction under 28 U.S.C. § 1291,
and we reverse and remand for further proceedings consistent
with this opinion.
I.
On August 2, 2014, Yagman sent Defendants a letter
requesting “[r]ecords/information” on “the names and
company/organization affiliations of any CIA employees,
agents, operatives, contractors, mercenaries, and/or
companies who are alleged to have engaged in torture of
persons.” Specifically, the letter sought the names and
affiliations of those “as to whom President Obama stated that
‘we tortured some folks’ on August 1, 2014: that is, who are
the individuals whom the word ‘we’ refers to?”2
2
At an August 1, 2014 press conference, President Obama was asked
about then-CIA Director Brennan and a report on the CIA’s rendition,
detention, and interrogation (“RDI”) program. In his response, he stated:

[E]ven before I came into office I was very clear that in
the immediate aftermath of 9/11 we did some things
that were wrong. We did a whole lot of things that
were right, but we tortured some folks. We did some
things that were contrary to our values.
....
And that’s what the report reflects. And that’s the
reason why, after I took office, one of the first things I
did was to ban some of the extraordinary interrogation
techniques that are the subject of that report.
Press Conference by the President, The White House (Aug. 1, 2014, 2:45
PM), https://www.whitehouse.gov/the-press-office/2014/08/01/pressconference-president (last visited July 31, 2017).

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Within FOIA’s twenty-day deadline, Defendants
responded to Yagman with a letter advising him that “[u]nder
the provisions of the FOIA, federal agencies are not required
to answer questions posed as FOIA requests. Since your
request does not constitute a request for records, we must
decline to process it.” Yagman reiterated his request in a
subsequent letter, but Defendants reaffirmed their position.
Yagman then filed a class action complaint against
Defendants to compel disclosure. Two months after service
of the complaint, Defendants left two messages for Yagman
instructing him to call the agency’s FOIA hotline “to discuss
his request.” At his direction, Yagman’s receptionist called
the hotline. Defendants again asserted that the agency was
unable to process Yagman’s request, but they “expressed a
willingness” to help him rework his request.
When Yagman did not contact the agency again,
Defendants moved to dismiss Yagman’s complaint for lack
of subject matter jurisdiction. The district court granted
Defendants’ motion, holding that Yagman’s letter did not
constitute a request for records. The court concluded that
Yagman’s failure to submit a valid request was a failure to
exhaust administrative remedies under FOIA, and, as a result,
the court lacked subject matter jurisdiction. Yagman timely
appealed.
II.
We review de novo the district court’s dismissal for lack
of subject matter jurisdiction. Leeson v. Transamerica
Disability Income Plan, 671 F.3d 969, 974 (9th Cir. 2012).

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III.

Congress enacted FOIA in recognition of the fact that
government transparency is critical to a functioning
democracy, but may be difficult to achieve against unwilling
officials. John Doe Agency v. John Doe Corp., 493 U.S. 146,
151–52 (1989). FOIA is therefore “broadly conceived,” id.
at 152 (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)),
favoring “full agency disclosure unless information is
exempted under clearly delineated statutory language,” id.
(quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360–61
(1976)). Even the clearly delineated exemptions, however,
“do not obscure the basic policy that disclosure, not secrecy,
is the dominant objective of the Act.” Id. (quoting Rose,
425 U.S. at 361). Accordingly, an agency must respond to
any request for records that “(i) reasonably describes such
records and (ii) is made in accordance with published
[agency] rules” by promptly making the requested records
available, 5 U.S.C. § 552(a)(3)(A), or, if applicable, by
invoking one of FOIA’s narrowly construed exemptions, see
id. § 552(b).
In this case, Defendants neither produced the requested
records nor invoked an exemption. Rather, Defendants
rejected Yagman’s letter as a question disguised as a FOIA
request. Defendants alternatively argue that Yagman’s
request did not “reasonably describe” the records he sought
and, therefore, did not trigger the CIA’s duty to respond.
Under either theory, Defendants argue that Yagman failed to
exhaust his administrative remedies and, accordingly, the
district court lacked subject matter jurisdiction.
We disagree, in all respects save one. Although
Defendants were required to liberally construe Yagman’s

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letter as a request for records, the request nonetheless failed
to “reasonably describe” the records sought. But this failure
bears on the merits of Yagman’s claim, not on the district
court’s subject matter jurisdiction. We therefore reverse the
district court’s judgment, and remand.
A.
Our sister circuits have recognized that federal agencies
have a duty to construe FOIA records requests liberally.
Rubman v. USCIS, 800 F.3d 381, 389–91 (7th Cir. 2015)
(explaining that the defendant agency was required to
liberally construe plaintiff’s request for “all documents”
despite the ambiguity of the word “documents” in the
request); Miccosukee Tribe of Indians of Fla. v. United States,
516 F.3d 1235, 1255 (11th Cir. 2008) (concluding that, even
if ambiguous, the EPA was “obliged under FOIA to interpret
[requests] . . . liberally in favor of disclosure”); Nation
Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885,
890 (D.C. Cir. 1995) (concluding that the Customs Service
should have liberally construed a request for records
“pertaining to” Ross Perot as seeking even those records that
were not specifically indexed under Perot’s name).3

3

District courts have likewise recognized the duty of liberal
construction, including within this circuit. See Lawyers’ Comm. for Civil
Rights of S.F. Bay Area v. Dep’t of the Treasury, 534 F. Supp. 2d 1126,
1130 (N.D. Cal. 2008) (“An agency has a duty to construe a FOIA request
liberally.”); see also, e.g., Immigrant Def. Project v. ICE, 208 F. Supp. 3d
520, 531–32 (S.D.N.Y. 2016) (concluding that ICE should have liberally
construed a request for “overview documents”); Serv. Women’s Action
Network v. Dep’t of Def., 888 F. Supp. 2d 231, 254–58 (D. Conn. 2012)
(accepting in part, rejecting in part plaintiff’s arguments that the Army and
Navy failed to read records requests liberally); Dayton Newspaper, Inc. v.
Dep’t of Veterans Affairs, 510 F. Supp. 2d 441, 447 (S.D. Ohio 2007)

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Indeed, the Department of Justice (“DOJ”) itself has long
issued guidance to federal agencies on the duty of liberal
construction. See Dep’t of Justice, Office of Info. Privacy,
FOIA Update, Vol. XVI, No. 3, at 4 (1995) (“[A]gencies
should interpret FOIA requests ‘liberally’ when determining
which records are responsive to them.” (quoting Nation
Magazine, 71 F.3d at 890)), available at
https://www.justice.gov/oip/blog/foia-update-oip-guidancedetermining-scope-foia-request (last visited July 31, 2017);
see also Dep’t of Justice, Office of Info. Privacy, Department
of Justice Guide to the Freedom of Information Act:
Procedural Requirements 27 (last updated July 11, 2016)
(“[A]n agency ‘must be careful not to read [a] request so
strictly that the requester is denied information the agency
well knows exists in its files, albeit in a different form from
that anticipated by the requester.’” (quoting Hemenway v.
Hughes, 601 F. Supp. 1002, 1005 (D.D.C. 1985)), available
at https://www.justice.gov/sites/default/files/oip/legacy/201
4/07/23/procedural-requirements.pdf (last visited July 31,
2017).
We have not yet had the opportunity to consider the issue.
But we are persuaded that a duty of liberal construction
accords with the basic purpose of FOIA “to ensure an
informed citizenry, vital to the functioning of a democratic
society, needed to check against corruption and to hold the
governors accountable to the governed.” NLRB v. Robbins

(noting that “[c]ourts have ruled that an agency should broadly construe
the subject matter of a FOIA request”); Nulankeyutmonen Nkihtaqmikon
v. BIA, 493 F. Supp. 2d 91, 113 (D. Me. 2007) (reasoning that “under the
law, the BIA should have construed the . . . requests liberally,” but
ultimately concluding that the BIA’s affidavit sufficiently explained the
adequacy of its search).

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Tire & Rubber Co., 437 U.S. 214, 242 (1978). Liberal
construction is warranted to achieve the core purpose of
FOIA: allowing the public to find out “what their government
is up to.” Dep’t of Justice v. Reporters Comm. for Freedom
of Press, 489 U.S. 749, 773 (1989) (quoting Mink, 410 U.S.
at 105 (Douglas, J., dissenting)).
While we have rarely reviewed an agency’s refusal to
respond to a records request on the ground that it poses a
question,4 applying the duty to liberally construe records
requests easily resolves this initial issue. Liberally construed,
Yagman requested “[r]ecords/information” identifying CIA
employees or affiliates who have engaged in torture after
September 11, 2001. The fact that Yagman’s request
references President Obama’s August 1, 2014 statement does
not transform Yagman’s request into a question.5 See
4

The district court identified only one case where we appear to have
been presented with a similar situation: Zemansky v. EPA, 767 F.2d 569
(9th Cir. 1985). In Zemansky, however, the plaintiff was attempting to
compel the EPA to answer questions “under several statutes and
regulations other than the FOIA.” Id. at 573. In response to the plaintiff’s
claims, we declined to disturb the district court’s ruling that an agency has
“no duty under the FOIA to answer questions unrelated to a request for
documents, and it has no duty to create documents.” Id. (emphasis added).
Zemansky therefore clarifies the scope of an agency’s duty under FOIA,
but does not assist us in determining whether Yagman’s letter should be
construed as a question or as a request for records.
5

Notably, government agencies have at least searched for (and,
ultimately produced a limited number of) records in response to a
similarly broad request for the “names and identities of detainees” secretly
detained “since September 11, 2001.” Amnesty Int’l USA v. CIA, No. 07
CIV. 5435 (LAP), 2008 WL 2519908, at *1 (S.D.N.Y. June 19, 2008).
Although the district court in that case concluded that the agencies were
not “required to compile a list of individuals it determined were subject to
‘secret detention’ and search for documents related to those individuals,”

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LaCedra v. Exec. Office for U.S. Attorneys, 317 F.3d 345,
347–48 (D.C. Cir. 2003) (concluding that an agency is
required to “liberally” construe a request when the “drafter of
a FOIA request might reasonably seek all of a certain set of
documents while nonetheless evincing a heightened interest
in a specific subset thereof”). We therefore hold that the
district court erred in concluding that Yagman’s request
constituted a question rather than a request for records.
B.
The flaw of Yagman’s FOIA request is its vagueness, not
the way in which he framed it. As we observed in Marks,
“FOIA requires that federal agencies make records available
only upon a request which ‘reasonably describes’ the records
sought.” Marks v. United States, 578 F.2d 261, 263 (9th Cir.
1978) (quoting 5 U.S.C. § 552(a)(3)). Although “courts have
been wary to prohibit this requirement from becoming a
loophole through which federal agencies can deny the public
access to legitimate information, it has been held that broad,
sweeping requests lacking specificity are not permissible.”
Id.6 As Yagman submitted a poorly framed request with
the nature of the request did not prevent the agencies from conducting
some search for responsive documents and providing those documents to
the plaintiff. Id. at *13.
6

This is not to say that Yagman’s request fails simply because it may
encompass a large number of documents. “[T]he number of records
requested appears to be irrelevant to the determination whether they have
been ‘reasonably described.’” Yeager v. DEA, 678 F.2d 315, 326 (D.C.
Cir. 1982); see also Dep’t of Justice, Office of Info. Privacy, FOIA Update
Vol. IV, No. 3, at 5 (1983) (“The sheer size or burdensomeness of a FOIA
request, in and of itself, does not entitle an agency to deny that request on
the ground that it does not ‘reasonably describe’ records within the
meaning of 5 U.S.C. § 552(a)(3)(A)”). Indeed, “[t]he statute itself ‘puts

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limited specifics, Defendants could not know what records
would be responsive.
Yagman insists that his request was not vague, but a
description should “enable[] a professional employee of the
agency who was familiar with the subject area of the request
to locate the record with a reasonable amount of effort.” Id.
(quoting H. Rep. No. 93-876, at 6 (1974), reprinted in 1974
U.S.C.C.A.N. 6267, 6271). This inquiry does not require
Yagman to identify documents or databases by name, but
some reasonable description is required. In Shapiro v. CIA,
for example, the D.C. district court held that a FOIA request
for all CIA files that “mention” Nelson Mandela was
reasonably descriptive under FOIA, since “the scope of [the
plaintiff’s] request [wa]s clear,” Shapiro, 170 F. Supp. 3d at
155–56, and “should involve virtually no guesswork,” id. at
154.
Here, Defendants would need to engage in quite a bit of
guesswork to execute Yagman’s request. His request does
not identify specific persons, much less specific documents,
types of documents, or types of information. Nor does his
request suggest much in the way of times, dates, locations, or
even clearly indicate if he is seeking the identities of those

no restrictions on the quantity of records that may be sought.’” Shapiro
v. CIA, 170 F. Supp. 3d 147, 155 (D.D.C. 2016) (quoting Tereshchuk v.
Bureau of Prisons, 67 F. Supp. 3d 441, 454 (D.D.C. 2014) , aff’d sub nom.
Tereshchuk v. Bureau of Prisons, Dir., No. 14-5278, 2015 WL 4072055
(D.C. Cir. June 29, 2015)). “Rather, it explicitly contemplates unusually
large requests, affording reviewing agencies additional time ‘to search for
. . . a voluminous amount of separate and distinct records which are
demanded in a single request.’”
Id. (quoting 5 U.S.C.
§ 552(a)(6)(B)(iii)(II)).

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who have engaged in torture or only those who are alleged to
have engaged in torture.7
As the district court noted, Yagman’s request would
therefore require a search for “unspecified persons in
unspecified locations during a vaguely defined time after
September 11, 2001.” Although FOIA does not require
requesters to do more than “reasonably describe” the records
sought, it does require more than Yagman has offered.
Ultimately, therefore, he cannot compel Defendants to
disclose documents on the basis of such a vague request.8
C.
Our review does not end here. Defendants argue that
Yagman’s failure to “reasonably describe” the records sought
constitutes a failure to exhaust administrative remedies and,
as a result, the district court lacked subject matter jurisdiction.
We disagree. The requirement in § 552(a)(3) that a person
submitting a FOIA request “reasonably describe” what she or

7
Defendants appear to further fault Yagman’s request for failing to
define the term “torture,” but we reject that argument. FOIA was not
enacted to serve as a tool only for lawyers or legal organizations, who
often have the expertise and resources to craft legally rigorous requests.
Rather, as we have noted above, FOIA provides a means for “citizens[] [to
exercise their] right to be informed about what their government is up to.”
Reporters Comm., 489 U.S. at 773 (emphasis added) (internal quotation
marks omitted). No legal definition was therefore required. That said, the
parties are free to reach a mutually agreed-upon definition if that would
facilitate the processing of a FOIA request.
8

It is worth noting, however, that even in Marks, the agency
responded to the plaintiff’s “broad, sweeping” request with at least some
responsive documents. Marks, 578 F.2d at 263.

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he seeks is properly viewed as an ingredient of the claim for
relief, rather than a question of subject matter jurisdiction.
“Judicial opinions . . . often obscure the [law] by stating
that the court is dismissing for lack of jurisdiction when some
threshold fact has not been established, without explicitly
considering whether the dismissal should be for lack of
subject matter jurisdiction or for failure to state a claim.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006) (internal
quotation marks omitted). As the Supreme Court has
explained, such “drive-by jurisdictional rulings . . . should be
accorded no precedential effect.” Id. (internal quotation
marks omitted).
Instead, statutory requirements should be considered
jurisdictional only when Congress “clearly states” as much.
Id. at 515–16 (“If the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly instructed
and will not be left to wrestle with the issue.” (footnote
omitted)). “[W]hen Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat
the restriction as nonjurisdictional in character.” Id. at 516.
Drawing from the Supreme Court’s opinions in Arbaugh,
546 U.S. 500, and later related cases,9 we have recognized
three factors that guide this inquiry. Leeson, 671 F.3d at
976–77. A requirement or rule is nonjurisdictional if it (1) “is
not clearly labeled jurisdictional,” (2) “is not located in a
jurisdiction-granting provision,” and (3) “no other reasons

9

See, e.g., Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
438–39 (2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166
(2010).

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necessitate[] that the provision be construed as
jurisdictional.” Id.; see also Payne v. Peninsula Sch. Dist.,
653 F.3d 863, 869–70 (9th Cir. 2011) (en banc), overruled on
other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir.
2014) (en banc).
Here, the first two factors strongly suggest that the
description requirement is nonjurisdictional. The requirement
“is not clearly labeled jurisdictional” and “is not located in a
jurisdiction-granting provision.” Leeson, 671 F.3d at 976–77;
see also 5 U.S.C. § 552(a)(3)(A)(i). Indeed, the statute’s
separate “jurisdiction-granting” provision makes no mention
of the description requirement. See 5 U.S.C. § 552(a)(4)(B)
(providing for jurisdiction in “the district court of the United
States in the district in which the complainant resides, or has
his principal place of business, or in which the agency records
are situated, or in the District of Columbia”).
As to the third factor, we see no reason why the
description requirement should be treated as jurisdictional.
The district court and parties can address any FOIA request
that fails to satisfy the description requirement with a Federal
Rule of Civil Procedure 12(b)(6) motion to dismiss for failure
to state a claim. There is no need to elevate the requirement
to the status of a jurisdictional prerequisite.
To the extent Defendants argue the requirement must be
satisfied for the purposes of exhaustion and exhaustion itself
is jurisdictional, we reject that argument as well.
Significantly, FOIA does not expressly require exhaustion,
much less label it jurisdictional, nor does FOIA include
exhaustion in its jurisdiction-granting provision. See 5 U.S.C.
§ 552(a)(4)(B). Therefore, exhaustion cannot be considered
a jurisdictional requirement. See Weinberger v. Salfi,

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422 U.S. 749, 766 (1975) (differentiating between an
exhaustion requirement that is a “statutorily specified
jurisdictional prerequisite” and a requirement that is “simply
a codification of the judicially developed doctrine of
exhaustion”); I.A.M. Nat’l Pension Fund Ben. Plan C v.
Stockton TRI Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984)
(“Only when Congress states in clear, unequivocal terms that
the judiciary is barred from hearing an action until the
administrative agency has come to a decision . . . has the
Supreme Court held that exhaustion is a jurisdictional
prerequisite.”); see also Hidalgo v. FBI, 344 F.3d 1256,
1258–59 (D.C. Cir. 2003) (same).
The majority of circuits, including the D.C. Circuit, see
Hidalgo, 344 F.3d 1256, have concluded as much, see Hull v.
IRS, 656 F.3d 1174, 1181–82 (10th Cir. 2011) (collecting
cases). They agree that “exhaustion under FOIA is a
prudential consideration rather than a jurisdictional
prerequisite.” Id. at 1182.
Our opinion in In re Steele does not dictate otherwise.
There, we held that the district court lacked jurisdiction under
FOIA because the plaintiffs never submitted a FOIA request
to the relevant agency. See United States v. Steele (In re
Steele), 799 F.2d 461, 466 (9th Cir. 1986) (“Neither of [the
plaintiffs] ever made a request . . . from the [agency] pursuant
to the FOIA.”). This is hardly the situation in Yagman’s case,
where he submitted a formal, albeit vague request pursuant to
FOIA and reiterated his request to Defendants when they
rejected it.
Although In re Steele does assume that “[e]xhaustion of
a part[y’s] administrative remedies is required under the
FOIA before that party can seek judicial review,” 799 F.2d at

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465, this statement appears, at most, to be the type of “driveby jurisdictional ruling” that the Supreme Court warned
against twenty years after In re Steele was decided. The
statement is further undermined by the fact that we
considered whether the futility exception to exhaustion
applied. “If exhaustion was strictly jurisdictional, [we] would
have had no need to address the issue of the ‘futility
exception’ at all. In that sense, In re Steele actually supports
a conclusion that exhaustion is a jurisprudential doctrine,
rather than a jurisdictional one.” Andrus v. Dep’t of Energy,
200 F. Supp. 3d 1093, 1101 (D. Idaho 2016).10 Even if it did
not, we are confident that the statement in In re Steele is
nothing more than a drive-by ruling.11 Ultimately, any failure
to exhaust does not bear on the district court’s subject matter
jurisdiction.
D.
We conclude that the district court erred when it
dismissed the case for lack of subject matter jurisdiction, and
we reverse the district court’s judgment. But we agree with
the district court that Yagman failed to “reasonably describe”

10

In Andrus, the district court anticipated our holding today when it
correctly concluded that the “lack of unequivocal language in FOIA
otherwise requiring exhaustion for purposes of subject matter jurisdiction
. . . [renders] exhaustion under FOIA a jurisprudential requirement,” not
a jurisdictional one. Andrus, 200 F. Supp. 3d at 1101.
11

To the extent that In re Steele could be read to hold that exhaustion
under FOIA ranks as jurisdictional, we decline to follow it. Leeson,
671 F.3d at 979 (explaining that a three-judge panel may overrule a prior
three-judge panel opinion when the prior opinion “is clearly irreconcilable
with the reasoning or theory of intervening higher authority” (quoting
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)).

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the records he sought. Nonetheless, we remand to the district
court with instructions to allow Yagman to reframe his
request for documents in light of our holding and the CIA’s
repeated offers to assist him in formulating a reasonably
specific request. The district court may stay proceedings as
it deems appropriate to allow the parties to work out any
revised request, if possible, and to allow the CIA to respond
to any revised request as permitted under FOIA or any
implementing regulations.
Providing the CIA another opportunity to assist in
developing a more descriptive request is not only appropriate,
but also warranted, given that the CIA’s own regulations state
that requests “which do not meet [the reasonable description]
requirements will be considered an expression of interest and
the Agency will work with, and offer suggestions to, the
potential requester in order to define a request properly.”
32 C.F.R. § 1900.12(c); accord Hall & Assocs. v. EPA, 83 F.
Supp. 3d 92, 104 (D.D.C. 2015) (directing the defendant
agency to cooperate with the plaintiff “in accordance with
[its] FOIA regulations,” which require the agency to assist
those requesting records).
Additionally, we note that courts have held that an agency
has “no right to ‘resist disclosure because the request fails
“reasonably [to] describe” records unless it has first made a
good faith attempt to assist the requester in satisfying that
requirement.’” Ruotolo v. Dep’t of Justice, Tax Div., 53 F.3d
4, 10 (2d Cir. 1995) (quoting Ferri v. Bell, 645 F.2d 1213,
1221 (3d Cir. 1981), modified on other grounds, 671 F.2d 769
(3d Cir. 1982)). While Defendants did contact Yagman to
“discuss” his request three months after he filed this lawsuit,
his request had already been twice rejected with no offer to

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YAGMAN V. POMPEO

“work with, and offer suggestions to, the potential requester
in order to define a request properly.”
The judgment is REVERSED and REMANDED.