Administrative – Exhausted’ Litigant Exhausted His FOIA Remedy

Coleman v. Drug Enforcement Administration (Lawyers Weekly No. 13-01-0460, 20 pp.) (Wilkinson, J.) No. 11-1999, May 2, 2013; USDC at Alexandria, Va. (Lee, J.) 4^th Cir.

Holding: Despite a statutory mandate requiring federal agencies to respond to FOIA requests and appeals within 20 working days, defendant Drug Enforcement Administration ultimately took two and one-half years to respond to plaintiff’s request for documents concerning the federal government’s regulation of the drug carisoprodol, and the 4^th Circuit says the exhausted plaintiff has exhausted his administrative remedies, reverses the district court judgment for the agency, and remands the case for further proceedings.

The trek through the administrative process began Feb. 29, 2008, when plaintiff, a researcher and author, sent a request under the Freedom of Information Act to the DEA seeking documents regarding the scheduling of carisoprodol pursuant to the Controlled Substances Act. Plaintiff offered to reimburse the government all appropriate costs in connection with the search and reproduction of the requested records up to $1,000. On July 14, 2009, DEA denied the request on the grounds that $1,000 would not cover the necessary costs. It requested $1,640 from plaintiff to begin processing documents. Plaintiff appealed the fee assessment. The Office of Information Policy remanded the matter back to the DEA without mandating a particular disposition. Plaintiff resubmitted his FOIA request to the DEA on April 22, 2010, reiterating that he was not a commercial requester and proposing a settlement of all processing fees.

After waiting four more months, plaintiff filed this pro se lawsuit. On Sept. 29, 2010, just before filing an answer in this litigation, the DEA took action on plaintiff’s request, declining to grant him either a noncommercial fee status or a fee waiver. The district court granted summary judgment to the DEA in March 2011, concluding plaintiff both failed to exhaust his administrative remedies and failed to pay the necessary fee.

Here, the DEA’s inaction on remand triggered constructive exhaustion of plaintiff’s administrative remedies and allowed him to proceed directly to court. It is beyond question that both the DEA and the OIP failed to comply with the applicable time limits that governed plaintiff’s initial request and appeal. That the agency responded after the suit began is of no moment. We conclude plaintiff has constructively exhausted his administrative remedies with respect to the claims made in his request upon remand.

We reject the DEA’s contentions that plaintiff cannot rely on constructive exhaustion here because the agency responded to his initial request before he filed his lawsuit, and even if he constructively exhausted the claim that he was a noncommercial requester, he did not exhaust the fee waiver claim because he did not request a waiver until after litigation had begun.

Further, FOIA does not require any prepayment of processing fees before a requester may proceed to court to dispute the assessment of those very fees.

Nowhere in FOIA did Congress contemplate government sitting on its hands for months at a time and doing nothing. The time has come for plaintiff to receive resolution of his request of Feb. 29, 2008.

Summary judgment for the DEA reversed and case remanded.