ZANDER v. DEPARTMENT OF JUSTICE et al

Filing 25

ORDER denying 20 Motion to Stay. Signed by Judge John D. Bates on 5/10/11. (DJMAC, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROBERT A. ZANDER,
Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al.
Defendants.

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Civil Action No. 10-2000 (JDB)

ORDER
This action concerns plaintiff’s requests made under the Freedom of Information Act
(FOIA) for documents from the Federal Bureau of Prisons (BOP) and the U.S. Department of
Justice (DOJ). Compl. ¶ 1, ECF No. 1. Plaintiff has filed a motion in which he asserts that, in
response to the request to BOP, that agency “served upon Plaintiff approximately 15 pages of
documents supposedly responsive to Plaintiff’s June 21, 201[0] FOIA request.” Pl.’s Mot. for
Stay to File Objections to Def. BOP’s Late March 1, 2011 Resp. to Pl.’s June 21, 2011 FOIA
Request at 1, ECF No. 20 [hereinafter Mot.]. Plaintiff notes that he has been informed of his
right to appeal this release, id. (citing 28 C.F.R. § 16.9), but expresses concern that doing so
would “divest this Court of jurisdiction” over this action and that defendants might resultantly
move to dismiss this action, id. at 1–2. Plaintiff thus asks the Court for an “order staying the
appeal requirements of 28 CFR § 16.9.” Mot. at 1. This motion will be denied.
The Court notes that § 16.9 does not require an appeal. See § 16.9 (“If you are
dissatisfied with a component’s response to your request, you may appeal an adverse
determination . . . .”) (emphasis added). However, the Court recognizes that plaintiff is

concerned with the effect that participating in the administrative appellate process might have on
his existing litigation. There is no cause for such concern. Although the BOP has moved for
summary judgment following its document release, it does not argue that the Court lacks
jurisdiction over this action because of that release. See 2d Mem. of P. & A. in Supp. or Defs.’
Mot. for Summ. J., in Part, ECF No. 15-6 [hereinafter Mem.]. Nor could it make such argument;
under the FOIA caselaw of the District of Columbia Circuit, exhaustion of administrative
remedies is a “jurisprudential doctrine,” not a matter of jurisdiction. Hidalgo v. FBI, 344 F.3d
1256, 1258–59 (D.C. Cir. 2003). Moreover, where, as in this case, an agency has failed to timely
respond to a FOIA request and a requester commenced a FOIA action before the agency made
any response whatsoever, a requester is deemed to have constructively exhausted his
administrative remedies and does not need to first administratively appeal an adverse
determination before proceeding with already-begun litigation. Pollack v. DOJ, 49 F.3d 115,
119 (4th Cir. 1995); Mem. at 3 (admitting that BOP failed to respond to plaintiff’s request prior
to this litigation). That Court concludes, then, that plaintiff’s fear of dismissal for lack of
jurisdiction if he avails himself of the administrative appellate process now is unwarranted.
Accordingly, it is hereby
ORDERED that Plaintiff’s Motion for Stay to File Objections to Defendant BOP’s Late
March 1, 2011 Response to Plaintiff’s June 21, 2011 FOIA Request, ECF No. 20, is DENIED.

/s/
JOHN D. BATES
United States District Judge

DATE: May 10, 2011

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