Upload
aidan-monaghan
View
221
Download
0
Embed Size (px)
Citation preview
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 1/21
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
________________________________________________________
Appeal No. 11-16214
________________________________________________________
AIDAN MONAGHAN,
Plaintiff-Appellant,
v.
FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF JUSTICE,
Defendants-Appellees.
________________________________________________________
APPELLANT’S REPLY BRIEF
________________________________________________________
On Appeal from the United States District Court
for the District of Nevada
Hon. James C. Mahan
Case No. 09-cv-02199-JCM-GWF
DANIEL J. STOTTER (Oregon State Bar # 911090)
Stotter & Associates LLC
408 SW Monroe Ave, Ste L163
Corvallis, OR 97333
Tel. (541) 738-2601
Fax (541) 738 0611
Attorney for Plaintiff Appellant
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 2/21
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. THE DISTRICT COURT ERRED BY DISMISSING APPELLANT’S
ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. THE DISTRICT COURT ERRED BY DENYING APPELLANT’S’ FEE
WAIVER REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 3/21
-i-
TABLE OF AUTHORITIES
CASES
Dettman v. Dept. of Justice, 802 F.2d 1472 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . 4
Friends of the Coast Fork v. Dept. Of Interior , 110 F.3d 53 (9 Cir. ‘97) 2, 11, 13th
Hidalgo v. FBI , 344 F.3d 1256 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Hymen v. Merit Systems Protection Board , 799 F.2d 1421 (9 Cir. 1986) . . . . . .th 3
In re: Steele, 799 F.2d 461(9 Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 3
Jeanes v. U. S. Department of Justice, 357 F. Supp. 2d 119 (D.D.C.2004) . . 5, 14
Judicial Watch, Inc. v. Rossotti,, 326 F.3d 1309 (D.C. Cir. 2003) . . . . . . . . . . . . 15
Kissinger v. Reporters Committee For Freedom of the Press, 445 U.S. 136, 153
(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Maydak v. U.S. Department of Justice, 254 F.Supp. 2d 23 (D.D.C. 2003) . . 5, 14
Pollack v. Department of Justice, 49 F.3d 115 (4 Cir. 1995) . . . . . . . . . . . .th 4,5, 14
Spannaus v. U.S. Dept. Of Justice, 824 F.2d 52 (D.C. Cir. 1987) . . . . . . . . . . . . . 4
Trueblood v. U.S. Department of Treasury, 943 F. Supp 64 (D.D.C. 1996) . 5, 14
Wildlands CPR v. U.S. Forest Service, 558 F.Supp.2d 1096 (D. Montana 2008) . 4
STATUTES
5 U.S.C. § 552(a)(4)(A)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10-11, 15
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 4/21
-ii-
5 U.S.C. § 552(a)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5 U.S.C. § 552(a)(6)(viii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8,9
5 U.S.C. § 552(a)(6)(C)(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 15
REGULATIONS AND RULES
28 CFR 16.211(3)-(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 5/21
This case does not present circumstances where the non-payment of fees1
for any prior FOIA requests serve as the legal basis for the agency’s failure to
process Appellant’s August, 2009 FOIA request as suggested by Appellees. It isnot disputed that the past fees have been paid to the agency, see AOB at 16. n.13,
and although the agency’s FOIA regulations provide a discretionary option for
the agency to inform in advance a FOIA requester that it will require advance
payment to redress past FOIA request debts, see 28 CFR 16.211(3)-(4), it is
beyond dispute that the agency did not timely inform Appellant that they would
not process his August 2009 FOIA request, based upon any prior unresolved or
unpaid fee issues, until after he had filed his District Court action. Therefore, this
agency regulation, raised by the agency only after Monaghan filed this court
action, cannot be used to support a “failure to exhaust administrative remedies”
argument for this 2009 FOIA request. The agency’s regulations concerning past
fee debts clearly apply only after the agency have provided notice to the FOIA
requester per 28 CFR 16.211(3)-(4). Therefore, any issues concerning payment of
fees for Appellant’s prior FOIA requests have no bearing upon the processing of
Appellant’s August 2009 FOIA request at issue in this appeal.
- 1 -
I. INTRODUCTION
This case presents two issues for appellate review: (1) whether the District
Court erred by holding that Plaintiff-Appellant Monaghan (“Appellant”) failed to
exhaust his administrative remedies for his August 2009 FOIA request, and, (2)
whether the District Court erred by denying Appellant’s public interest fee waiver
request for this August 2009 FOIA request. However, in their Answering Brief,
Appellees also repeatedly discuss Appellant’s prior FOIA requests, that simply have
no relevance or bearing upon the issues presented in this action for Appellant’s
August 2009 FOIA request.1
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 6/21
See Friends of the Coast Fork v. United States Dept. Of Interior , 110 F.3d2
53, 55 (9 Cir. 1997) (FOIA requester has initial burden of presenting prima facieth
support of a public interest fee waiver, after which the agency bears the burden of
refuting entitlement in the record of the agency’s administrative proceedings).
- 2 -
On the issue of exhaustion of administrative remedies for the 2009 FOIA
request at issue in this appeal, Appellees are wrong, as a matter of law, in suggesting
that the District court could negate Appellant’s constructive exhaustion of
administrative remedie,s based upon subsequent agency actions and agency filing
after this case was filed. Once a requester has met the statutory requirements for
“constructive exhaustion of administrative remedies” provided by 5 U.S.C. §
552(a)(6)(C)(I) at the time their court action is filed, that party cannot lose their
status of having exhausted their administrative remedies after the court case is filed,
nor do they need to perform any further administrative actions for purposes of
“exhaustion of administrative remedies” as a matter of law. There is no basis for a
party to thereafter have their status of constructive exhaustion “negated” by any
subsequent agency actions or filings.
As to the second issue, Appellant Monaghan has met his primae facie burden2
of demonstrating entitlement to a public interest fee waiver for his August 2009
FOIA request in the administrative record before the agency. See AOB at 17-21.
Moreover, as judicial review of this issue is expressly limited to the administrative
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 7/21
See 5 U.S.C. § 552(a)(4)(A)(vii).3
Appellee argue that this Court’s prior rulings establish that failure to4
exhaust administrative remedies in a FOIA action is “jurisdictional” as opposed to being a “jurisprudential” requirement, and suggest there is a split of authority
between the D.C. Circuit and Ninth Circuit on this issue. See AAB at 10 n. 8.
However, the cases cited by Appellee do not support that argument. Neither
Hymen v. Merit Systems Protection Board , 799 F.2d 1421 (9 Cir. 1986), nor Inth
Re Steele, 799 F.2d 461 (1986) hold that “exhaustion of administrative remedies”
is jurisdictional for a FOIA action, as opposed to jurisprudential - those cases
merely state that exhaustion of administrative remedies is required. Cf . Hidalgo v.
FBI , 344 F.3d 1256, 1258 (D.C. Cir. 2003) (explaining why exhaustion is actually
jurisprudential in FOIA actions).
As noted in Appellant’s Opening Brief, the FOIA statute expressly allows5
a FOIA request to proceed directly with filing a FOIA court action, pursuant to 5
U.S.C. § 552(a)(6)(C)(I), without further administrative actions, if the agency
failed to meet their statutory deadline for responding to a FOIA request or
- 3 -
record , it was legal error for the District Court to rely upon post hoc arguments and3
evidence presented by Appellee for the first time in the District Court proceedings to
deny Appellant’s public interest fee request. See AOB at 20-21.
II. The District Court Erred By Dismissing Appellant’s Action For Failure
To Exhaust Administrative Remedies
As discussed in Appellant’s Opening Brief, the District Court improperly
dismissed this action for alleged “failure to exhaust administrative remedies”
notwithstanding Appellant’s constructive exhaustion of administrative remedies
pursuant to the express language of the state. See AOB at 7-16. Appellees do not4
dispute the facts supporting “constructive exhaustion of administrative remedies ” at5
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 8/21
administrative appeal. See AOB at 9-10; see e.g. Spannaus v. U.S. Dept. Of
Justice, 824 F.2d 52, 58 (D.C. Cir. 1987); Pollack v. Department of Justice, 49
F.3d 115, 118-119 (4 Cir. 1995); Wildlands CPR v. United States Forest Service,th
558 F.Supp.2d 1096, 1102-1103 (D. Montana 2008).
- 4 -
the time Monaghan filed his District Court action at issue in this appeal. Instead,
Appellees argue that the District Court properly negate Appellant’s constructive
exhaustion of administrative remedies based on new issues presented by the agency,
after he filed his court action. However, there is no authority supporting the District
Court and Appellee’s position that a party’s constructive exhaustion of
administrative remedies in a FOIA action can be negated or taken-away after the
filing of a court action.
The D.C. Circuit’s ruling in Dettman v. United States Dept. of Justice, 802
F.2d 1472 (D.C. Cir. 1986), relied upon by both the District Court, see ER 5-6, and
by Appellees on appeal, see AAB at 20, is not a “constructive exhaustion of
administrative remedies” FOIA case, and its discussion of finding only “partial
exhaustion” by a FOIA requester involved the distinguishable issue of an
administrative appeal which failed to include a substantive issue, that the FOIA
requester subsequently attempted to raised for the first time in judicial review of that
agency action. Id . at 1476-1477. That case clearly does not stand for the proposition
suggested by Appellees - that a Court can negate “constructive exhaustion of
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 9/21
- 5 -
administrative remedies” by a FOIA requester in a FOIA action based on issues
raised for the first time by the agency in the court proceedings.
Appellee’s reliance upon Pollack in their Answering Brief for this position is
equally misplaced, see AAB at 21(citing Pollack v. United States Department of
Justice, 49 F.3d 115, 118-120 (4 Cir. 1995)), as that ruling actually rejectedth
Appellees argument that there was a failure to exhaust administrative remedies,
where there was “constructive exhaustion” pursuant to 5 U.S.C. § 552(a)(6)(C)(I).
Id at 118-119. In fact, in all of the cases referenced in the agency’s Answering Brief
in support of that argument, the Courts found lack of subject matter jurisdiction
only where the FOIA requester had both refused to pay their fees for the FOIA
request at issue in the action, and also failed to seek a public interest fee waiver, or
to otherwise provide any other basis at law to support non-payment of fees. See e.g.
Pollack v. United States Department of Justice, 49 F.3d at 120; Jeanes v. United
States Department of Justice, 357 F. Supp. 2d 119, 123 (D.D.C. 2004); Trueblood v.
United States Department of Treasury, 943 F. Supp 64, 68 (D.D.C. 1996); Maydak
v. United States Department of Justice, 254 F.Supp. 2d 23, 50 (D.D.C. 2003). The
Court’s dismissal of the court actions in each of these cases was ultimately based
upon FOIA requesters’ failure to seek a fee waiver and / or failure to pursue a fee
waiver in their administrative appeals. Id . However, as noted above, the basis for
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 10/21
- 6 -
lack of subject matter jurisdiction in those cases does not apply to the case at hand,
where it is undisputed that Appellant expressly sought a seek a public interest fee
waiver, and in addition, provided an independent basis at law to support his legal
right to non-payment of fees for his August 2009 FOIA request. There are no
cases that provide for a dismissal based on failure to exhaust administrative remedies
under facts even remotely similar to the case at hand, involving constructive
exhaustion of administrative remedies, and Appellee’s argument was summarily
rejected by one recent district court decision from within this Circuit. See Wildlands
CPR v. United States Forest Service, 558 F.Supp.2d 1096, 1102-1103 (D. Montana
2008).
Although not essential for this Court’s resolution of the issue concerning the
dismissal of this action for alleged “failure to exhaust administrative remedies,” the
Appellee’s Answering Brief also extensively discusses FOIA’s fee preclusion
provision, 5 U.S.C. § 552(a)(6)(viii), regarding this issue, see AAB at 14-19, and
therefore, Appellant will respond to those arguments herein, to demonstrate that
there is no merit to the agency’s assertion that FOIA’s fee preclusion was in any
respect was “waived” by the Appellant, notwithstanding the fact that this provision
of FOIA issue cannot, as a matter of law, properly support the dismissal of
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 11/21
It is Appellant’s position that this fee preclusion provision applies6
automatically to the present FOIA request, as a matter of law, as a result of the
agency having missed its statutory deadlines, as further discussed herein.
However, in no respect can that provision of FOIA support the district court’s
dismissal of Appellant’s action for failure to exhaust administrative remedies, as
suggested by Appellees.
- 7 -
Appellant’s FOIA action by the District Court in this action.6
First, it is undisputed that at the time Monaghan filed his August 2009 FOIA
request, he requested both (1) responsive records and (2) a public interest fee waiver,
see SER 06-07, and he could have no basis for asserting or discussing statutory fee
preclusion issues at that time - a records requester clearly cannot be expected to
anticipate or predict the agency’s subsequent failure to timely respond to a FOIA
request in the future.
Thereafter, when the agency failed to timely respond to his FOIA request,
Appellant filed an administrative appeal, challenging the agency’s failure to respond
to both his records request and fee waiver request, and again asserting his request for
responsive records and a public interest fee waiver. See SER 8-9, 13. As the agency
had not responded to his FOIA request, Appellant could not be expected to know
that the agency would not agree to abide by the non-discretionary statutory provision
of 5 U.S.C. § 552(a)(6)(viii), nor could he otherwise know if the agency planned to
grant his fee waiver request for all search fees and duplication costs for that FOIA
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 12/21
- 8 -
request, thereby negating the need for the more limited fee preclusion provision, that
only applies to search fees (and not duplication costs). Therefore, Appellant had no
reason to assert a claim for the more limited statutory fee preclusion provision of 5
U.S.C. § 552(a)(6)(viii)in his administrative appeal to the agency, when he still
sought a broader fee waiver for this FOIA request.
Moreover, not only was it premature for Appellant to address the statutory fee
preclusion in his administrative appeal, but it is also significant to note that, unlike
the FOIA fee waiver provision, a FOIA requester is not required to request or be
“granted” a fee preclusion under 5 U.S.C. § 552(a)(6)(viii) based upon any agency
determination - that section of the FOIA statute is expressly automatic, per the
statutory language, upon the agency not meeting its deadline, and unlike a fee
waiver, does not have to be sought or “requested” from the agency. See 5 U.S.C. §
552(a)(6)(viii) (automatic fee preclusion provision); cf 5 U.S.C. § 552(a)(4)(A)(iii)
(requiring fee waiver request by requester). Therefore, Monaghan did not need to
address the fee preclusion provision within his administrative appeal.
When Appellant filed his Complaint, he continued to seek both the responsive
records for his August 2009 FOIA request, and a public interest fee waiver. See SER
01-04 (Complaint). However, it was still premature for Appellant to address fee
preclusion at that time, until the District Court had addressed a ruling on his broader
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 13/21
- 9 -
public interest fee waiver claim as to both search fees and costs. Directly upon the
District Court’s Order denying Appellant’s fee waiver request, Monaghan (as a pro
se litigant) timely filed briefing to the Court below, expressly indicating in the
District Court proceedings that if he was not to receive a full fee waiver as to the
search fees and duplication costs for his August 2009 FOIA request, he was
nonetheless entitled to the automatic fee preclusion as to search fees per U.S.C. §
552(a)(6)(viii). See ER 19-21. Therefore, Appellant Monaghan has clearly not
“waived” his right to a waiver of search fees pursuant to 5 U.S.C. § 552(a)(6)(viii).
The District Court’s Order, and Appellee’s Answering Brief, also suggest that
FOIA’s “unusual circumstances” exception to this statutory provision should apply
to Appellant’s August 2009 FOIA request, based upon both the quantity of
responsive material and complexity of the subject matter of this FOIA request, to bar
application of the statutory fee preclusion provision. See ER 6 (District Court
Order), see also AAB at 17-19.
However, as noted in Appellant’s Opening Brief, the “unusual circumstances”
provision of FOIA does not apply in the present action, as that provision of FOIA
only allows for a limited 10 day extension of time for an agency to respond to a
request or appeal. See AOB at 15 (citing 5 U.S.C. § 552(a)(4)(B). In the present
action, it is beyond dispute that Appellees did not timely respond to Appellant’s
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 14/21
Moreover, since the agency never responded to Appellant’s August 20097
FOIA request prior to the filing of the instant action on November 17, 2009, it is
beyond dispute that the “unusual circumstances” provision of FOIA, which only
provides an additional ten days for an agency response, cannot be used as an
exception for the agency’s failure to timely respond to the initial FOIA request.
- 10 -
administrative FOIA Appeal prior to his November 17, 2009 filing of the instant
action, even with the additional ten working day period authorized by 5 U.S.C. §
552(a)(4)(B). Appellant’s administrative appeal was received by the agency on
October 1, 2009. See ER 26 (Dec. Monaghan ¶ 5). This Court can take judicial
notice, by reference to the calendar for 2009, that Appellant’s filing of his federal
court action on November 17, 2009, was in fact after the additional ten working
days authorized for “unusual circumstances” - even when combined with the
statutory 20 working days authorized by FOIA for the agency to respond to
Appellant’s administrative appeal. See 5 U.S.C. § 552(a)(6)(A)(ii). Therefore, the
“unusual circumstances” provision of FOIA, 5 U.S.C. § 552(a)(4)(B), cannot be
employed to support to bar fee preclusion based upon the agency’s failure to timely
respond to Appellant’s administrative appeal.7
III. The District Court Erred in Denying Appellant’s’ Fee Waiver Request
As discussed in Appellant’s opening brief, based upon the administrative
record that was actually before the agency in the administrative proceedings (ie:
before the filing of the District Court action), Appellant has met his primae facie
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 15/21
See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d 53, 558
(9 Circuit 1997) (holding that once a FOIA requester presents a primae facieth
showing of entitlement to public interest fee waiver, the burden shifts to the
government agency to rebut the basis for granting a fee waiver by evidence
submitted within the administrative proceedings).
- 11 -
burden of demonstrating entitlement to a public interest fee waiver pursuant to 58
U.S.C. § 552(a)(4)(A)(iii) for his August, 2009 FOIA request. See AOB at 18-20. It
is not disputed that the agency (Appellees) failed to timely submit any response to
dispute, or otherwise challenge, Appellant’s entitlement or eligibility for a public
interest fee waiver in the administrative proceedings. Therefore, the only issue
presented is whether Appellant has met his prima facie burden in addressing the
applicable fee waiver criteria in his FOIA request and in his administrative appeal to
the agency. See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d 53, 55
(9 Circuit 1997). Appellant has previously demonstrated that he has met his primath
facie burden in his opening brief for this appeal. See AOB at 18-20.
Although both parties to this appeal agree that judicial review of a FOIA
public interest fee waiver request is subject to de novo review, and is expressly
limited by the FOIA statute to the agency’s administrative record. See AOB at 16;
see also AAB at 10-11 (citing Friends of the Coast Fork v. U.S. Dept. Of Interior ,
110 F.3d 53, 54 (9 Cir. 1997), the parties disagree as to what constitutes theth
“administrative record” for that purpose in this action. Appellant’s position is that
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 16/21
Appellees also argues that the post hoc submissions by the agency must be9
considered because Monaghan, as a pro se litigant, initially (mistakenly)
“stipulated” to the agency’s filing of an “Administrative Record” prepared by
counsel for the government that included materials not actually before the agency
at the time of the agency’s administrative review of Appellant’s fee waiver issue.
SeeAAB at 12. However, as previously discussed in Appellant’s Opening Brief,
Monaghan subsequently informed the District Court of this error, indicating that
these supplemental materials were not actually part of the agency’s administrative
record in the District Court proceedings. See AOB at 20 n. 15; see e.g. ER 44-47,
ER 27-30. As appellate review of FOIA fee waiver issues is de novo, based upon
the actual administrative record, this Court should only consider the materials
- 12 -
the administrative record is strictly limited to those matters that were actually before
the agency prior to the filing of Appellant Monaghan’s FOIA court action, see AOB
at 20-21, whereas Appellee FBI takes the position that the District Court (and this
Court on review) may properly consider anything that the agency has elected to add
to the “administrative record” at any time - even after the present court case was filed
by Appellant Monaghan, at a time when his FOIA fee waiver request determination
was already before the court, and no longer subject to further agency review. See
AAB at 12-14.
Appellees do not dispute that the District Court’s Order relied extensively
upon evidence submitted by the agency for the first time on January 13, 2010, see
ER 50-53 (Court Order on Fee Waiver), see also ER 63-65(agency’s January 13,
2010 fee waiver response), after Monaghan had already filed his District Court
action, for its fee waiver determination. Appellees argue that the agency can9
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 17/21
actually before the agency in the administrative proceedings, notwithstanding a
pro se litigant’s mistake in stipulating to the agency’s filing, particularly where
this error was presented to the District Court in the proceedings below. Id .
This Court has previously rejected Appellee’s position, holding that this10
judicial review limitation applies equally to the agency’s position opposing a fee
waiver, as well as the evidence presented in support of a fee waiver presented by a
FOIA requester. See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d
53, 55 (9 Cir. 1997). th
- 13 -
continue to develop or add to the administrative record in a fee waiver review action,
even after the FOIA court action has been filed, for judicial review of FOIA public
interest fee waiver determinations. See AAB at 12-14. However, none of the cases
cited by Appellees as to this issue actually support the agency’s position that the
“administrative record” in a FOIA fee waiver action can be created or otherwise
enlarged by either party after a Court case has been filed, and it is clear that this
argument is entirely at odds with the express language and purpose of the limitation
as to FOIA fee waiver matters requiring judicial review to be “limited to the record
before the agency. ” See 5 U.S.C. § 552(a)(4)(A)(vii).10
For example, Appellee’s reference to the Supreme Court’s decision in
Kissinger for this issue is entirely misplaced. See e.g. AAB at 11 (citing Kissinger v.
Reporters Committee For Freedom of the Press, 445 U.S. 136, 153 (1980). That
decision does not in any respect pertain to, nor otherwise discuss the scope of the
proper “administrative record” for judicial review in a FOIA fee waiver action. Id .
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 18/21
- 14 -
Nor does Appellee’s reliance on the Jarvik decision from the District of Columbia
support Appellees’ position on this issue. See AAB at 12 (citing Jarvick v. Central
Intelligence Agency, 495 F.Supp. 2d 67, 71 (D.D.C. 2007). Although the quoted
portion of this case is an accurate statement of law, that decision does not in any
respect hold (or even suggest) that an agency can add additional materials to the
“administrative record” after a court case has already been filed, in the context of
judicial review of a FOIA fee waiver issue, as currently suggested by Appellees. See
AAB at 13-14.
In fact, neither Pollack v. Department of Justice, 49 F.3d 115, 118-119 (4th
Cir. 1995); nor Jeanes v. United States Department of Justice, 357 F. Supp. 2d
(D.D.C. 2004), nor Maydak v. United States Department of Justice, 254 F.Supp. 2d
23 (D.D.C. 2003), nor Trueblood v. United States Department of Treasury, 943 F.
Supp 64 (D.D.C. 1996), are even public interest fee waiver cases, nor in any
respect stand for the proposition suggested by the agency, that a Court can consider
new materials submitted for the first time by the agency as a component of the
“administrative record” in a FOIA fee waiver review action. See AAB at 13-14.
As noted above, Appellant has clearly met his primae facie burden of
describing, with ”reasonable specificity,” the public interest benefits of disclosure of
the agency records at issue in his FOIA request, and such “reasonable specificity” is
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 19/21
- 15 -
“all that FOIA requires,” see Rossotti, 326 F.3d at 131, particularly where there is
undisputed evidence of a significant public interest in the subject matter of the
request, see ER 93, 95, and where there is an undisputed showing of a public
interest fee waiver by a non-commercial FOIA requester. Id . Therefore, Appellant
has demonstrated entitlement to a public interest fee waiver for this FOIA request,
and the District Court erred in denying his fee waiver request as a matter of law.
IV. CONCLUSION
Therefore, for all of the reasons set forth above, this Court should reverse the
District Court’s dismissal of this action by finding that Appellant has constructively
exhausted his administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(I), and
reverse the District Court’s holding as to Appellant’s entitlement to a public interest
fee waiver request for his August, 2009 FOIA request pursuant to 5 U.S.C. §
552(a)(4)(A)(iii) based upon the administrative record presented before the agency.
Respectfully Submitted,
/s/ Daniel J. Stotter Date: December 12, 2011
Daniel J. Stotter, OR # 911090
STOTTER & ASSOCIATES LLC
408 SW Monroe Ave, Ste L 163
Corvallis, OR 97333Tel. (541) 738-2601
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 20/21
STATEMENT OF RELATED CASES
Appellant’s Counsel is unaware of any related cases or appeals.
/s/ Daniel J. Stotter Date: December 12, 2011Daniel J. Stotter, OR # 911090
CERTIFICATE OF COMPLIANCE
I, Daniel J. Stotter, hereby certify that this brief conforms with the applicable
requirements for page length and other brief filing requirements as set forth by the
Federal Rules of Appellate Procedure , and by Ninth Circuit Rules, and the
undersigned counsel hereby certifies that all fonts used in this brief are
proportionally spaced, with a typeface of 14 points, and that this document contains
4524 words based upon the result provided by using the word count function of
Word Perfect (Version 12).
/s/ Daniel J. Stotter Date: December 12, 2011Daniel J. Stotter, OR # 911090
8/3/2019 9th Circuit FOIA Reply FBI Records
http://slidepdf.com/reader/full/9th-circuit-foia-reply-fbi-records 21/21
CERTIFICATE OF SERVICE
All Case Participants Registered for the Appellate CM/ECF System
I certify that on December 12, 2011, I electronically filed APPELLANT’S
REPLY BRIEF with the Clerk of the Court for the United States Court of Appeals
for the Ninth Circuit by using the appellate CM/ECF system. I certify that all
participants in the case are registered CM/ECF users, and that service of this Appeal
Brief will be accomplished by the appellate CM/ECF system.
Executed December 12, 2011 in Corvallis, Oregon.
/s/ Daniel J. Stotter
Daniel J. Stotter, OR # 911090
STOTTER & ASSOCIATES LLC
408 SW Monroe Ave, Ste L 163
Corvallis, OR 97333
Tel. (541) 738-2601
[email protected] for Appellant Aidan Monaghan