Nelson v. United States Army
Filing
29
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 9/25/2013: Mailed notice(etv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NEAL NELSON,
Plaintiff,
v.
UNITED STATES ARMY,
Defendant.
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No. 12 C 4718
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Neal Nelson (“Nelson”) develops and sells business-oriented software applications.
One such product, the X-Remote Terminal Emulation (“X-RTE”) software suite, allows users of
newer computers to access programs written for older machines. Nelson licensed the X-RTE for
use by the United States Army (“Army”) in the late 1990s, but he now suspects the Army is making
the software available to third parties, thereby violating the licensing agreement and interfering with
Nelson’s own commercial interest in marketing the software. To investigate these concerns, Nelson
filed five Freedom of Information Act (“FOIA”) requests seeking information concerning any nongovernment organizations that paid the United States Army (“Army”) for use of its computer network
testing facility. Nelson’s requests sought information spanning the period from 2001 through 2011.
The Army released information in response to two of Nelson’s requests, but withheld certain data,
primarily under the FOIA exemption that protects the confidential commercial information of third
parties from disclosure. Nelson now brings this pro se action against the Army, under 5 U.S.C. §
552 et seq., to compel Defendant to turn over additional documents in response to his FOIA
requests. Plaintiff further alleges that the Army’s incomplete disclosures entitle him to relief under
the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and he asks the court to
equitably toll the statute of limitations regarding any future claims he may bring against Defendant.
The Army requested, and received, permission to bifurcate issues for the purpose of summary
judgment [13]. Defendant now moves for summary judgment on Plaintiff’s FOIA claims based
solely upon Plaintiff’s alleged failure to exhaust his administrative remedies [16]. For the following
reasons, Defendant's motion is granted in part and denied in part.
BACKGROUND
The Army operates a Technology Integration Center (“TIC”) at Fort Huachuca, Arizona.
(Def.’s Mem. of L. in Support of Def.’s Mot. for Summ. J. [17] (hereinafter “Def.’s Mem.”), at 1.) The
TIC maintains a computer-network testing facility where non-government commercial vendors
seeking to do business with the government can submit their products for evaluation to ensure
compatibility with existing Army network infrastructure. (Id.)
I.
2008 FOIA Request
Plaintiff’s involvement with the TIC originated in approximately 1988 when he began to
provide computer consulting and software licensing services to the Army at Fort Huachuca.
(Compl. [1] ¶ 9.) In 1998 the Army purchased from Plaintiff a license to use X-Remote Terminal
Emulation (“X-RTE”), computer software developed and owned by Nelson; but at some point in
2004 Plaintiff came to believe that the TIC was using his software in violation of both the terms of
the licensing agreement and Army policy. (Id. ¶¶ 10-13.) Plaintiff informed General Michael
Mazzucchi, Commanding General of the Army’s Communications Electronics Command
(“CECOM”), of these concerns in a letter dated August 1, 2005. (Id. ¶ 66.) In response, General
Mazzucchi initiated an investigation with the CECOM Inspector General, which culminated in a
report dated November 21, 2006. (Report of Inquiry Case Number XC-05-0149, Ex. 10 to Compl.)
The published, redacted report concluded that the activities at the TIC violated neither the software
license nor Army regulations. Plaintiff believes, however, that an earlier version of the report came
to the opposite conclusion. (Compl. ¶¶ 71, 73.) Based on this belief, Plaintiff filed a FOIA request
on February 12, 2008 seeking selected pages from the “original” draft version of the Inspector
General’s report. (FOIA Request of 2/12/08, Ex. 5 to Compl.) This FOIA request was denied in its
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entirety on March 7, 2008 in a letter from Defendant’s Deputy Legal Advisor Margaret Baines.
(Letter from Baines to Nelson of 3/7/08, Ex. 5 to Compl.) Baines explained that the draft report was
exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5) (“FOIA Exemption 5”), which “protects
against premature disclosure of proposed policies . . . .” (Id.) Plaintiff appealed Baines’s decision
on March 16, 2008. (Compl. ¶ 75.) On December 8, 2008, Defendant’s Associate Deputy General
Counsel Ronald Buchholz, acting on behalf of the Secretary of the Army, issued the final decision
on this request. (Letter from Buchholz to Nelson of 12/8/08, Ex. 5 to Compl.) While Nelson’s
request was initially denied under Exemption 5, Buchholz wrote that “denial under Exemption 5 was
inadvertent, and that the appropriate response should have been a ‘no records’ finding.” (Id.)
Defendant claims that “there was no draft report to produce, as CECOM routinely destroys draft
reports . . . .” (Talbot-Bedard Decl. ¶ 15, Ex. A to Def.’s 56.1 [18].) According to Buchholz, “even
if such a draft had existed, it would have been properly denied under Exemption 5.” (Id.) It is
undisputed that Nelson has administratively exhausted this FOIA request by receiving an adverse
appellate determination from the head of the agency, and may seek judicial review in accordance
with 5 U.S.C. § 552(a)(4)(B). (Def.’s Rep. [24] at 1-2.)
II.
2007 and 2009 FOIA Requests
After initially seeking and failing to obtain information from the Army regarding the TIC’s use
of X-RTE (but prior to filing his 2008 FOIA request discussed above), Nelson sent the first of his
FOIA requests to the U.S. Army Garrison in Fort Monmouth, New Jersey on March 5, 2007. (Pl.’s
56.1 [20] ¶ 5.)
This request sought access to information regarding “all non-government
organizations that [had] paid to use the [TIC]” between 2001 and 2006, including the organizations’
identities, the amounts they paid the Army, and what tests they performed at the TIC. (FOIA
Request of 3/5/07, Ex. 2 to Compl.) On September 12, 2007, Plaintiff filed a second FOIA request
through his representative in Congress, Rep. Dennis Hastert, seeking substantially the same
information he had requested in March of that year. (FOIA Request of 9/12/07, Ex. 3 to Compl.)
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Then, on January 22, 2009, while still awaiting action on his 2007 requests, Plaintiff submitted
another FOIA request to Fort Monmouth, again seeking “[i]nformation about non-government
organizations that have paid to use the ‘commercial’ testing facilities at the TIC between January
2001 and present.” (FOIA Request of 9/12/07, Ex. 4 to Compl.) The 2007 and 2009 FOIA requests
were ultimately processed together by Army FOIA Officer Ellen Edwards and denied due to
Plaintiff’s failure to pay pre-disclosure notification (“PDN”) fees associated with his request. (Pl.’s
56.1 ¶ 8.)
These requests later became the subject of litigation in which Nelson alleged that the Army
improperly processed his requests, that its fees were inaccurately estimated, and that no PDN was
required. Nelson v. U.S. Army, No. 10 C 1735, 2011 WL 710977, at *1 (N.D. Ill. Feb. 22, 2011).
This court granted summary judgment in favor of the Army, dismissing Plaintiff’s case “without
prejudice to renewal of Plaintiff’s FOIA request upon payment of the costs of [PDN].” Id. at *9. On
March 29, 2011, following final judgment in that litigation, Plaintiff issued a check for $1159 to the
Army to cover the PDN fees related to his FOIA requests. (Pl.’s 56.1 ¶ 9.) Upon receipt of
Plaintiff’s payment, the Army TIC began pre-disclosure processing, contacting affected vendors and
assessing their potential exposure to substantial competitive harm as a result of possible
disclosures related to Plaintiff’s FOIA requests. (Id.) Defendant’s processing of Nelson’s FOIA
requests lasted several months, during which FOIA Officer Connie Quinn provided Plaintiff with
status updates and two interim releases on November 29, 2011 and December 12, 2011. (Id. ¶¶
9-10.) Quinn transmitted the final release in response to the 2007 and 2009 FOIA requests on
March 12, 2012 in the form of a spreadsheet listing vendors, dates of service, and amounts paid.
(Ex. 7 to Compl.) The next day, March 13, 2012, Quinn e-mailed Plaintiff clarifying that five
vendors’ entries in this release had been redacted pursuant to 5 U.S.C. § 552(b)(4) (“FOIA
Exemption 4”) to protect the vendors from potential competitive harm. (Id. ¶ 11.) Plaintiff believed,
however, that these redactions were improper; and later that day, he e-mailed Quinn requesting a
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formal denial from the Initial Denial Authority (“IDA”).1 On April 19, 2012—37 days later—the IDA,
CECOM Chief Counsel Maria Esparraguera, issued a decision upholding some of Officer Quinn’s
redactions based on FOIA Exemption 4, but requiring disclosure of certain other materials Quinn
had marked for redaction.2 (Id. ¶¶ 11-12.)
Esparraguera’s denial letter also informed Plaintiff of the procedure for further appellate
review: “You may appeal this denial to the Secretary of the Army . . . the appeal letter must be
received . . . within sixty (60) days of the date of this letter.” (Letter from Esparraguera to Nelson
of 4/19/12, Ex. A to Def.’s 56.1.) The Army never received an appeal from Nelson regarding his
2007 and 2009 FOIA requests. (Pl.’s 56.1 ¶ 12.) Therefore, it argues, Plaintiff has not exhausted
his administrative remedies and his claims related to these requests should be dismissed. (Def.’s
Mem. at 8.) Plaintiff contends, however, that the matter of his appeal is moot, because the Army
issued its IDA decision more than a month after Nelson filed his appeal, thereby failing to meet the
20-day statutory deadline.3 The missed deadline, Plaintiff argues, served to constructively exhaust
his administrative remedies and, as a result, he “was not required to perform any additional
administrative appeals” prior to seeking judicial review. (Nelson Decl. [22] ¶¶ 14-16.) Plaintiff
further contends that the Army failed to comply with the FOIA’s time limits for his appeals dated
March 16, 2008, May 28, 2008, and June 22, 2009, as well. (Id. ¶ 13.)
1
Pursuant to Army regulations, FOIA Officers are authorized to release records in
response to FOIA requests, but only IDAs have authority to deny portions of FOIA requests. 32
C.F.R. § 518.16(a). FOIA requesters may appeal IDA decisions to the Secretary of the Army within
60 days. 32 C.F.R. § 518.17(a), (c). The decision of the Secretary of the Army is considered a final
determination and is subject to judicial review in U.S. District Court. 32 C.F.R. § 518.18.
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Esparraguera’s decision upheld three of Quinn’s five redactions and overturned two
for vendors IBM and Fortinet. These two entries were subsequently produced without redactions
and included in a spreadsheet attached to the IDA decision. (Letter from Esparraguera to Nelson
of April 19, 2012, Ex. A to Def.’s 56.1.)
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“Each agency, upon any request for records . . . shall . . . make a determination with
respect to any appeal within twenty days . . . after the receipt of such appeal.” 5 U.S.C. § 552
(a)(6)(A)(ii).
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Plaintiff alternatively argues that he is entitled to judicial review of his September 12, 2007
and January 22, 2009 FOIA requests, because Defendant indicated as much in letters from
Buchholz dated February 9, 2009 and March 1, 2010, respectively. (Nelson Decl. ¶¶ 4-5.) In each
of these letters, Buchholz wrote, “This letter constitutes final action on behalf of . . . the Army . . .
You may, if you so desire, seek judicial review of this determination through the federal court
system in accordance with the provisions of the FOIA, 5 U.S.C. § 552(a)(4)(B).” (Nelson Decl. ¶¶
4-5.) As Defendant points out, however, these letters from Buchholz refer to Plaintiff’s appeals
regarding the PDN fees at the heart of the parties’ prior litigation, not the IDA determination at issue
in the instant case. (Def.’s Rep. at 2.) In fact, Buchholz wrote both letters over two years before
Esparraguera rendered the relevant IDA decision in April 2012. (Id.)
III.
2012 FOIA Request
During the Army’s processing of Plaintiff’s 2007 and 2009 FOIA requests, Plaintiff filed his
fifth and final FOIA request in this matter. (FOIA Request of 1/13/12, Ex. 6 to Compl.) Plaintiff
mailed that request to his congressional representative on January 13, and it reached the Army
FOIA officer on January 24, 2012. (Letter from Quinn to Nelson of 4/24/12, Ex. 6 to Compl.) This
request sought significantly more detailed information than his prior requests regarding the funds
collected from non-government organizations that used the TIC at Fort Huachuca between 2001
and 2011.4 (Pl.’s 56.1 ¶¶ 15-16.) The Army set an initial response date of February 23, 2012 for
this request, but Quinn wrote a letter to Plaintiff on that date extending the deadline to March 23,
2012. (Letter from Quinn to Nelson of 2/23/2012, Ex. 6 to Compl.) The Army estimated that the
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Specifically, Plaintiff’s January 13, 2012 FOIA request sought: “(1) each date when
any funds were received, (2) the amount of money received by date, (3) the date when any portion
of those funds were disbursed, (4) the amount of money disbursed by date, (5) the person or
organization to whom the funds were disbursed, and (6) details for justification, purpose, use and/or
reason for the disbursement.” (FOIA Request of 1/13/12, Ex. 6 to Compl.)
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fees associated with processing this “significantly more time intensive” request totaled $4,075,5 but
Nelson’s request explicitly stated that he agreed to pay only “reasonable duplication fees . . . in an
amount not to exceed $100.” (Pl.’s 56.1 ¶¶ 15-16.) On April 24, Quinn wrote a letter to Plaintiff
explaining that unless he notified the Army by May 1, 2012 that he was willing to pay the processing
fee, his request would be administratively closed on that date. (Id. ¶ 17.) Quinn contacted Plaintiff
again via e-mail on May 1 to remind Plaintiff of the deadline, and when Nelson failed to contact the
Army, Quinn closed the request at the end of the following business day. (Id.) Plaintiff argues that
the Army’s failure to meet the 20-day FOIA response deadline laid out in 5 U.S.C. § 552(a)(6)(A)(I)
entitles him to judicial review despite the fact he has not paid the required fees. (Id.)
IV.
Bifurcation of Dispositive Motions
Defendant requested [13], and the court granted [15], the bifurcation of dispositive motions
in this case. The court agreed to first consider Defendant’s motion for summary judgment solely
on the issue of administrative exhaustion of Plaintiff’s FOIA claims. In its memorandum in support
of summary judgment, however, Defendant introduces arguments unrelated to the issue of
administrative exhaustion. Defendant’s reply memorandum suggests that “judicial economy” (which
the Army also cited in support of its motion to bifurcate) counsels in favor of reaching issues beyond
exhaustion. (Def.’s Rep. at 6 n.3.) While it may have proven more efficient to address all of
Defendant’s arguments for summary judgment in a single dispositive motion, Plaintiff was not
afforded the opportunity to address issues other than exhaustion to the extent that he relied upon
the bifurcation order. Accordingly, for purposes of this motion, the court will address only the issue
of administrative exhaustion of Plaintiff’s FOIA claims. Upon disposition of this motion, Defendant
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Officer Quinn provided Plaintiff with a detailed summary of the Army’s fee estimates
in a letter dated April 24, 2012. The $4,075 estimate consisted of (1) $225 in copy charges, (2)
$2,508 in review charges, and (3) $1,342 in search charges. (Letter from Quinn to Nelson of
4/24/12, Ex. 6 to Compl.) Quinn’s estimates were based on rates established by the fee schedule
of 32 C.F.R. Subpart F.
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has indicated that, if necessary, it will file an additional motion for summary judgment based on the
merits of Plaintiff’s remaining claims. (Def.’s Mot. to Bifurcate ¶ 5.)
DISCUSSION
I.
Standard of Review
Defendant seeks summary judgment on the ground that Plaintiff failed to exhaust
administrative remedies before he filed this lawsuit. Summary judgment is required “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). “A genuine issue of material fact arises only
if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that
party.” Egonmwan v. Cook County Sheriff’s Dept., 602 F.3d 845, 849 (7th Cir. 2010). In
determining whether factual issues exist, a court must view all the evidence and draw all
reasonable inferences in the light most favorable to the non-moving party. Weber v. Universities
Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010).
II.
FOIA Requests (Count I)
Plaintiff seeks disclosure of the records sought in his FOIA requests to the Army. For
purposes of this motion, Defendant argues only that Plaintiff may not seek judicial review of these
requests due to his failure to exhaust the available administrative remedies.
The FOIA was enacted to facilitate public access to Government documents. U.S. Dep't
of State v. Ray, 502 U.S. 164, 173 (1991). Accordingly, the FOIA generally requires federal
agencies to make their records available to the public on demand. 5 U.S.C. § 552(a). This general
policy, however, is subject to nine statutory exemptions, which authorize agencies to withhold
certain information from FOIA requesters. 5 U.S.C. § 552(b)(1)-(9). In addition to its nine
exemptions, the FOIA establishes the process by which FOIA requests are to be filed by requesters
and reviewed by agencies. The statute leaves to each agency, however, the task of promulgating
its own regulations to govern its responses to FOIA requests. 5 U.S.C. § 552(a)(1). For instance,
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each agency may “specify[] the schedule of fees applicable to the processing of requests . . . and
establish[] procedures and guidelines for determining when such fees should be waived or
reduced.” 5 U.S.C. § 552(a)(4)(A)(I). Pursuant to the FOIA, the Army has promulgated its own
regulations regarding the collection of fees for responding to FOIA requests. See 32 C.F.R. §
286.29.
Consistent with this elaborate administrative scheme, FOIA requesters must exhaust their
administrative remedies prior to seeking judicial review. Almy v. U.S. Dep’t of Justice, No. 96-1207,
1997 WL 267884, at *3 (7th Cir. May 7, 1997); see also Oglesby v. U.S. Army, 920 F.2d 47, 64
(D.C. Cir. 1990).6 Requesters may exhaust their administrative remedies in one of two ways: (1)
“actual” exhaustion or (2) “constructive” exhaustion. A requester “actually” exhausts his or her
administrative remedies where an agency’s determination is adverse, and that agency
determination is subsequently upheld in an administrative appeal “to the head of the administrative
agency.” 5 U.S.C. § 552(a)(6)(A)(I). Alternatively, a FOIA request is “constructively” exhausted
where “the agency fails to comply with the applicable time limit provisions” of the statute. 5 U.S.C.
§ 552(a)(6)(C)(I). For instance, the FOIA gives agencies only twenty days to (1) determine whether
to comply with a request, and (2) respond to any appeal. 5 U.S.C. § 552(a)(6)(A)(I), (ii). But when
a requester has filed suit after 20 days have elapsed without a FOIA response, the agency may
obtain a stay of the proceedings if it can show that “exceptional circumstances exist and that the
agency is exercising due diligence in responding to the request.” 5 U.S.C. § 552(a)(6)(C).
Where, however, an agency fails to meet the FOIA’s deadlines and the requestor
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Plaintiff suggests that Oglesby is inapplicable, but his assertion that “the appeals
court vacated the district court’s ruling against Oglesby” is inaccurate. (Pl.’s Rep. at 4-5.) In fact,
the D.C. Circuit “vacate[d] the order of the district court . . . and remand[ed] with orders to dismiss
appellant's claim against these agencies for failure to exhaust his administrative remedies.”
Oglesby, 920 F.2d at 71. Plaintiff may be referring instead to a subsequent case involving the
same parties, which dealt with different issues immaterial in this case. See Oglesby v. U.S. Army,
79 F.3d 1172 (D.C. Cir. 1996).
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nonetheless chooses to wait for the agency to respond prior to filing suit, “the FOIA allows the
agencies to have the benefit of the full administrative process before suit is filed.” Oglesby, 920
F.2d at 64-65; see also Goulding v. IRS, No. 97 C 5628, 1998 WL 325202, at *8 (N.D. Ill. June 8,
1998). That is, once an agency responds to a request, the FOIA requires the completion of the
administrative appeal process prior to judicial review. Similarly, constructive exhaustion does not
relieve requesters of the obligation to pay the fees associated with their requests. Goulding, 1998
WL 325202, at *9; see Oglesby, 920 F.2d at 66 (“[e]xhaustion does not occur until the required fees
are paid or until an appeal is taken from the refusal to waive fees”).
A.
2008 FOIA Request
The parties do not dispute that Plaintiff has exhausted his administrative remedies regarding
his 2008 FOIA request: Plaintiff received a denial from the Army’s IDA and appealed to the
Secretary of the Army, who upheld the IDA’s decision. Despite seeking (and receiving the court’s
permission) to bifurcate its dispositive motions, Defendant now asks the court to review the denial
of Nelson’s 2008 FOIA request on the merits because “the entire administrative record . . . has
been provided.” (Def.’s Rep. at 6 n.3.) The court declines this invitation, however, as Plaintiff has
not yet had the opportunity to address Defendant’s claims on the merits. Indeed, Defendant
acknowledges that Nelson’s response is focused on the uncontested proposition that his 2008 FOIA
request is exhausted. (Def.’s Rep. 6-7.) Accordingly, Defendant’s motion for summary judgment
based on exhaustion is denied as it relates to Plaintiff’s 2008 FOIA request.
B.
2007 and 2009 FOIA Requests
Defendant argues that it is also entitled to summary judgment on Plaintiff’s FOIA requests
from 2007 and 2009, because Nelson failed to properly exhaust the administrative remedies at his
disposal. (Def.’s Mem. at 7-8.) In response, Plaintiff contends he has exhausted his administrative
options both actually and constructively. As proof of actual exhaustion, Plaintiff points to letters
from Buchholz dated February 9, 2009 and March 1, 2010 stating that Nelson may now “seek
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judicial review of this determination through the federal court system.” (Pl.’s Rep. [21] at 4.)
Plaintiff also argues that his claim was constructively exhausted “[w]hen the Army failed to respond
to Plaintiff’s . . . appeal within the time limit specified by the FOIA . . . .” (Pl.’s 56.1 ¶ 14.) Neither
of Plaintiff’s arguments is persuasive.
As Defendant points out, Buchholz’s letters are not relevant to exhaustion of the 2007 or
2009 requests. Those letters address Plaintiff’s responsibility to pay PDN fees which were the
subject of the parties’ prior litigation before this court. In fact, the same letters were cited by the
Plaintiff in that suit, which resolved the PDN fee issue in the Army’s favor. See Nelson, 2011 WL
710977, at *3. Plaintiff ultimately paid the PDN fees in 2011, and in March 2012 the Army
completed its disclosures relating to Nelson’s 2007 and 2009 FOIA requests. Nelson subsequently
sought a formal denial related to the information redacted from Defendant’s 2012 disclosures, and
the Army IDA issued a formal denial on April 19, 2012. Rather than appealing the IDA decision to
the Secretary of the Army, as required to exhaust his administrative remedies, Plaintiff filed the
instant suit. Because Plaintiff failed to pursue appellate review from the head of the agency, he has
failed to actually exhaust his administrative remedies under the FOIA. Regardless of the timeliness
of the Army’s initial response to Plaintiff’s FOIA requests, Plaintiff has also failed to constructively
exhaust his administrative remedies, as Defendant issued its IDA decision, appealable to the
Secretary of the Army, prior to Plaintiff’s filing suit. As a result, the FOIA requires Plaintiff to
complete the administrative appeal process prior to seeking judicial review.
Plaintiff has neither constructively nor actually exhausted the administrative remedies
available to him under the FOIA.
As a result, judicial review is inappropriate at this time.
Defendant’s motion for summary judgment is, therefore, granted as to Plaintiff’s 2007 and 2009
FOIA requests.
C.
2012 FOIA Request
Defendant contends that Plaintiff is not entitled to seek judicial review of his 2012 FOIA
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request for failure to exhaust his administrative remedies because Plaintiff failed to pay the fees
required to process his request. (Def.’s Mem. at 9-10.) Plaintiff has not directly responded to this
argument, instead asserting that his administrative remedies were constructively exhausted
because “Defendant failed to meet a deadline that is mandated by the FOIA.” (Pl.’s Rep. at 5.)
Regardless of whether Nelson has constructively exhausted his administrative remedies, however,
he is not entitled to judicial review. Plaintiff is statutorily obligated to pay all fees which the Army
is authorized to collect, and constructive exhaustion does not relieve him of this obligation. See
Goulding, 1998 WL 325202, at *9. Nelson acknowledges that he has not paid the processing fees
associated with his 2012 FOIA request, nor has he sought a fee waiver or any other
accommodation. Accordingly, Defendant is entitled to summary judgment on Count I as it relates
to Plaintiff’s 2012 FOIA request.
III.
APA Claim & Equitable Tolling (Counts II & III)
In addition to his FOIA-related claims, Plaintiff seeks review under the APA (Compl. ¶¶ 144-
155), and requests an “equitable tolling” of the statute of limitations “[r]egarding any action” brought
in the future by Plaintiff related to the Army’s activities at the TIC. (Compl. ¶¶ 156-161.) As the
issue of administrative exhaustion is not relevant to either of these claims, summary judgment on
Counts I and II is inappropriate at this time. The court notes, however, that both of these claims
present uphill battles for Plaintiff. First, under the APA, judicial review of an agency action is
appropriate only when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here,
however, the FOIA provides an adequate remedy such that an APA claim seeking the compelled
disclosure of records is precluded. See Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 537538 (7th Cir. 2005). Second, equitable tolling as to hypothetical future actions would also be
improper, as the issue is not yet ripe for decision. See Piekarski v. Amedisys Ill., LLC, No. 12 C
7346, 2013 WL 2357536, at *3 (N.D. Ill. May 28, 2013) (denying request for equitable tolling as to
prospective plaintiffs because it did not present a case or controversy as required by Article III).
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CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment [16] is granted in part
and denied in part. Defendant’s motion is granted as to Plaintiff’s claim regarding his 2007, 2009,
and 2012 FOIA requests. The claim relating to Plaintiff’s 2012 request is dismissed without
prejudice to renewal of this request upon payment of its associated processing costs. Defendant’s
motion is denied as to Plaintiff’s 2008 FOIA request.
ENTER:
Dated: September 25, 2013
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
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