CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. FEDERAL ELECTION COMMISSION

Filing 8

NOTICE of Recent Decision by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON re 5 Memorandum in Opposition, (Attachments: # 1 Exhibit)(Weismann, Anne)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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CITIZENS FOR RESPONSIBILITY AND )
ETHICS IN WASHINGTON,
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Plaintiff,
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v.
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FEDERAL ELECTION COMMISSION, )
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Defendant.
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____________________________________)

Civil no. 11-951 (CKK)

PLAINTIFF’S NOTICE OF RECENT DECISION
Defendant Federal Election Commission (FEC) has moved to dismiss the complaint in
the above-captioned action or, alternatively, for summary judgment. In support of its motion the
FEC has relied extensively on the district court’s opinion in Petit-Frere v. U.S. Attorney’s Office
for S.D. of Fla., 664 F.Supp.2d 69, 71 (D.D.C. 2009) (Petit-Frere), to argue plaintiff has failed to
exhaust administrative remedies.
On August 8, 2011, the district court in Petit-Frere issued a memorandum opinion
granting defendants’ motion for summary judgment. For the Court’s convenience a copy is
attached as Exhibit A. In explaining the background of the case, the Petit-Frere court stated:
On October 16, 2009, another judge in this District to whom
this case was previously assigned dismissed Plaintiff’s Complaint
without prejudice because he determined that Plaintiff had failed
to exhaust his administrative remedies. Defendants, however,
informed that judge on November 9, 2009, that the factual basis
for dismissal was not accurate. As a result, the case was reopened
on December 4, 2009.
Petit-Frere, No. 09-1732 (JEB), slip op. at 3 (D.D.C. Aug. 8, 2011).
The November 9, 2009 notice referenced by the court states in relevant part:

In its October 15, 2009 ruling the Court considered EOUSA’s
letter as the letter that responded to plaintiff’s request, stating
that “[b]ecause EOUSA responded before plaintiff submitted
this complaint for filing on August 31, 2009 constructive
exhaustion does not apply and the plaintiff is required to
exhaust his administrative remedies before he can exercise
his right to have this court entertain this suit.” Mem. Op.,
Pages 4-5. Defendant respectfully submits that EOUSA’s
August 28th letter constitutes EOUSA’s acknowledgment
letter, and not its final response . . . Under the FOIA, agencies
must make a “determination” of a request within twenty
working days. 5 U.S.C. § 552(a)(6)(A)(i) . . . An agency’s
letter acknowledging receipt of a request does not constitute
an agency’s “determination” under the FOIA because it neither
grants or denies the request, nor does it grant the right to
appeal the agency’s response . . . .
By letter dated September 15, 2009, EOUSA issued its final
response to plaintiff’s request, which occurred after the
filing of the instant suit on September 11, 2009 . . . The
Court’s dismissal of plaintiff’s Complaint for failure to
exhaust his administrative remedies is erroneous because
plaintiff filed this civil action before EOUSA issued its final
response to him. Accordingly, plaintiff constructively exhausted his administrative remedies.
Petit-Frere, No. 09-1732 (RWR), Notice at 1-2 (D.D.C. Nov. 9, 2009) (attached as Exhibit B).
In response to this notice, the Petit-Frere court reopened the case on December 4, 2009,
noting in part its “subsequent, additional review of the relevant documents and the case law
demonstrates that the dismissal was erroneous.” Petit-Frere, No. 09-1732 (RWR, Order
Reopening Case at 1 (D.D.C. Dec. 4, 2009) (attached as Exhibit C).
The August 8, 2011 memorandum opinion was the first notice plaintiff had that the PetitFrere case had been reopened. Accordingly, plaintiff respectfully submits this opinion and the
previous filings to which it cites for this Court’s consideration in ruling on the FEC’s pending
motion to dismiss or, alternatively, for summary judgment.

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Respectfully submitted,
/s/ Anne L. Weismann
D.C. Bar No. 298190
Melanie Sloan
D.C. Bar No. 434584
Citizens for Responsibility and Ethics
in Washington
1400 Eye Street, N.W., Suite 450
Washington, D.C. 20005
Telephone: [phone]
Fax: [phone]
[e-mail]
Dated: August 15, 2011

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