William M. Bryson, Jr. v. Gerson

Filing 29

ORDER DENYING 22 Motion for Summary Judgment; ORDER GRANTING 17 Motion for Summary Judgment in Defendants' Favor and Against Plaintiff; ORDER DIRECTING Clerk of Court to Close this case, signed by District Judge Lawrence J. O'Neill on 9/29/15. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM M. BRYSON, JR.,

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1:13-cv-879-LJO-MJS

Plaintiff,
v.
SUSAN B. GERSON AND UNITED STATES
DEPARTMENT OF JUSTICE,

MEMORANDUM DECISION AND
ORDER RE DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (Doc. 17)
AND PLAINTIFF’S MOTION TO
STRIKE (Doc. 22)

Defendants.

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I. INTRODUCTION
Plaintiff William M. Bryson, Jr. (“Plaintiff”), a federal inmate, brings this suit under the
Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., in which he requests various documents
allegedly concerning his criminal case. See Doc. 1, Complaint (“Compl.”) at ¶ 6. Defendants Susan B.
Gerson and the United States Department of Justice (“DOJ”) (collectively, “Defendants”) move for
summary judgment on the ground Plaintiff cannot bring this suit because he did not exhaust his
administrative remedies before filing this suit in that he (1) failed to pay the required fees associated
with his FOIA request and (2) failed to appeal administratively the decision of the Executive Office of
the United State Attorneys (“EOUSA”) denying his FOIA request for non-payment. Doc. 17-1 at 1.
The Court did not set a hearing for the motion and the parties did not request one. The Court
finds it appropriate to rule on the motion without oral argument. See Local Rule 230(g). For the
following reasons, the Court GRANTS Defendants’ motion for summary judgment.

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II. FACTUAL AND PROCEDURAL BACKGROUND1

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On January 6, 2012, EOUSA received a FOIA request from Plaintiff in which he requested “(A)

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the Transcripts of Karl Leon Kenyon’s (1) Pre-sentencing Hearings And (2) His Sentencing Trial.” Doc.

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17-3, Declaration of David Luczynski (“Luczynski Decl.”), Ex. A at 1. On February 24, 2012 2, EOUSA

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responded to Plaintiff and informed him that his request had been received and assigned a FOIA request

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number. Luczynski Decl., Ex. B. at 1. EOUSA further informed Plaintiff that by making a FOIA

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request, Plaintiff had “agreed to pay fees up to $25, as stated in 28 CFR § 16.3(c), unless [he] requested

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a fee waiver.” Id. EOUSA explained that
pursuant to 28 CFR § 16.11, if you have not been granted a fee waiver, we are required to charge
fees for time used to search for the documents you have requested and for duplication of all
pages released to you. Normally, search time is charged at a rate of $28 per hour after the first
two hours which are free, and duplication fees are $0.10 per page after the first 100 pages which
are free.

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On May 24, 2012, EOUSA informed Plaintiff that 21 boxes of records pertaining to his request

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14 had been located and that an estimated 21 hours would be required to complete the search for the
15 requested records. Luczynski Decl., Ex. C at 1. EOUSA further informed Plaintiff the fee for that search
16 time would be $588.00. Id. EOUSA explained that under 28 C.F.R. § 16.11(i), Plaintiff’s request would
17 not be considered received until EOUSA received a response from him, and asked that Plaintiff respond
18 within 30 days. Id.
On July 31, 2012, EOUSA informed Plaintiff that he had not responded to its May 24, 2012

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The Court has reviewed the entire record, but will only discuss the facts and arguments necessary to rule on Defendants’
motion for summary judgment.
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Under 5 U.S.C. § 552(a)(6)(C), EOUSA was required to respond to Plaintiff’s request within 10 days. Because they did not
do so, Plaintiff was entitled to file suit immediately under the “constructive exhaustion” doctrine “to compel [EOUSA’s]
response to [his] FOIA request.” Oglesby v. U.S. Dep’t of Army, 920 F.3d 57, 62 (D.C. Cir. 1990). However, because
EOUSA responded to Plaintiff’s FOIA request prior to Plaintiff filing suit, Plaintiff was required to exhaust his
administrative remedies. Id. at 64.
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28 C.F.R. § 16.11(i) was amended in 2015. See Revision of Department’s Freedom of Information Act Regulations, 80 F.R.
18099-01 (Apr. 3, 2015). The corresponding provisions are now contained in 28 C.F.R. § 16.10.

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letter, and that his FOIA request had been closed because Plaintiff had not paid the $588.00 fee.

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Luczynski Decl., Ex. D at 1. EOUSA further informed Plaintiff that this was “the final action” on his

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request and that he may appeal the decision within 60 days, id., but Plaintiff did not do so. Luczynski

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Decl. at ¶ 8.
Plaintiff brought this suit on June 10, 2013. Compl. at 1. Plaintiff brings one claim under FOIA

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in which he requests that the Court order Defendants to provide Plaintiff with the documents he

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requested from EOUSA in his FOIA request. Id. at 8.
Defendants move for summary judgment on the claim. Defendants maintain that they followed

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all applicable rules and procedures and EOUSA was entitled to deny and close Plaintiff’s FOIA request

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10 for non-payment. Doc. 17-1 at 5. Defendants argue that Plaintiff’s failure to appeal that decision or pay

11 the $588.00 means he failed to exhaust his administrative remedies and therefore was not permitted to
12 bring this case. Id.
III. DISCUSSION

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To obtain records under FOIA, the requester must comply with the appropriate agency’s

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15 published FOIA rules. 5 U.S.C. § 552(a)(3)(A). FOIA requests made to EOUSA are governed by 28
16 C.F.R. §§ 16.3 et seq. See 28 C.F.R. Pt. 16, App’x I (providing that EOUSA is a “component” of DOJ
17 governed by 28 C.F.R. §§ 16 et seq.).
Under those rules, if anticipated costs associated with a FOIA request exceed $250.00, EOUSA

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19 “may require that the requester make an advance payment up to the amount of the entire anticipate fee
20 before beginning to process the request.” Id. § 16.10(i)(2). If EOUSA elects to require advanced
21 payment, “the [FOIA] request shall not be considered received and further work will not be completed
22 until the required payment is received.” Id. § 16.10(i)(4). “If the requester does not pay the advance
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In response to Defendants’ motion for summary judgment, Plaintiff essentially moved to strike the entirety of Defendants’

24 motion and documents filed in support. Doc. 22. The Court DENIES Plaintiff’s motion to strike. In addition, the Court need
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not discuss at length Plaintiff’s numerous arguments made in opposition to Defendants’ motion because they fail to address
the dispositive issue in this case—whether Plaintiff complied with EOUSA’s fee procedures for FOIA requests.

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payment within 30 calendar days after the date of the component's fee determination, the [FOIA] request

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will be closed.” Id.
Here, there is no dispute that (1) the estimated cost of Plaintiff’s FOIA request was $588.00; (2)

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EOUSA informed Plaintiff of the estimate; (3) required advanced payment of the estimate pursuant to

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28 CFR § 16.10(i); (4) informed Plaintiff that his request would be closed if he did not respond within

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30 days; (5) Plaintiff did not respond to any of EOUSA’s correspondence; (6) did not pay any part of the

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required fee; and (7) did not appeal the EOUSA’s decision to close his FOIA request for non-payment.

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In other words, Plaintiff failed to comply with EOUSA’s FOIA fee procedures set forth in 28 C.F.R.

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§ 16.10.
“A party requesting agency records under the FOIA must comply with the procedures set forth in

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11 the regulations promulgated by th[e] agency.” Calhoun v. Dep’t of Justice, 693 F. Supp. 2d 89, 91
12 (D.D.C. 2010). Accordingly, “[w]here a FOIA request is not made in accordance with the [agency’s]
13 published regulations, the FOIA claim is subject to dismissal for failure to exhaust administrative
14 remedies,” id., because “full and timely exhaustion of administrative remedies is a prerequisite to
15 judicial review under FOIA.” Judicial Watch, Inc. v. U.S. Naval Observatory, 160 F. Supp. 2d 111, 112
16 (D.D.C. 2001).
Plaintiff’s failing to pay the fees associated with his FOIA request and failing to appeal

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18 EOUSA’s closing the request for non-payment constitute a failure to exhaust his administrative
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19 remedies. See Tereshchuk v. Bureau of Prisons, 851 F. Supp. 2d 157, 162 (D.D.C. 2012) (collecting

20 cases). Accordingly, the Court GRANTS Defendants’ motion for summary judgment because Plaintiff
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21 was not entitled to bring this suit before exhausting his administrative remedies.

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Exceptions to this rule, such as a FOIA requester applying for a fee waiver or appealing from a denial of a fee waiver, are
inapplicable here. See Tereshchuk, 851 F. Supp. 2d at 162.
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The Court acknowledges that even though FOIA exhaustion is not a jurisdictional requirement, courts consistently dismiss
FOIA claims for failure to exhaust where, as here, the purposes of exhaustion and the applicable administrative scheme
support construing exhaustion as a mandatory prerequisite to judicial review. See, e.g., Taylor v. Appleton, 30 F.3d 1365,

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IV. CONCLUSION AND ORDER

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For the foregoing reasons, the Court:

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1. GRANTS Defendants’ motion for summary judgment (Doc. 17) in Defendants’ favor and

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against Plaintiff;

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2. DENIES Plaintiff’s motion to strike (Doc. 22); and

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3. DIRECTS the Clerk of Court to CLOSE this case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

September 29, 2015

UNITED STATES DISTRICT JUDGE
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1367 (11th Cir. 1994) (collecting cases); Hidalgo v. F.B.I., 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (collecting cases).

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