                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 LAWRENCE ROSENBERG,

    Plaintiff,

           v.                                               Civil Action No. 12-452 (CKK)
 UNITED STATES DEPARTMENT OF
 IMMIGRATION AND CUSTOMS
 ENFORCEMENT, et al.,

    Defendants.


                                  MEMORANDUM OPINION
                                      (July 22, 2013)

       Plaintiff Lawrence Rosenberg submitted Freedom of Information Act requests to various

federal agencies seeking, among other things, records related to the raid of Agriprocessors, Inc.,

meatpacking plant and the subsequent prosecution of Sholom Rubashkin.1 Dissatisfied with the

agencies’ responses to his request, the Plaintiff filed suit against United States Immigration and

Customs Enforcement (“ICE”), the United States Marshals Service, the Executive Office for

United States Attorneys, and the Federal Bureau of Investigation. Presently before the Court is

ICE’s [31] Mot ion to Dismiss or, Alternatively, Motion for Summary Judgment, and the

Plaintiff’s [38] Motion for Summary Judgment. Upon consideration of the pleadings,2 the

relevant legal authorities, and the record as a whole, the Court finds the Plaintiff failed to exhaust


       1
         See United States v. Rubashkin, 655 F.3d 849 (8th Cir. 2011) for an explanation of the
raid on Agriprocessors and the prosecution of Mr. Rubashkin.
       2
         Def.’s Mot., ECF No. [31]; Pl.’s Opp’n & Mot. for Summ. J. (“Pl.’s Cross-Mot.”), ECF
Nos. [37, 38]; Def.’s Reply & Opp’n to Pl.’s Cross-Mot. (“Def.’s Reply”), ECF Nos. [41, 42];
Pl.’s Reply, ECF No. [45]. The Plaintiff’s Supplement, ECF No. [60] only addresses the merits
of certain withholdings by various agencies, an issue the Court does not reach in the context of
the Plaintiff’s FOIA request to ICE.
his administrative remedies regarding the merits of his claims against ICE, and the equitable

considerations cited by the Plaintiff does not warrant excusing that failure in this case.

Accordingly, ICE’s motion for summary judgment is GRANTED and the Plaintiff’s cross-

motion is DENIED AS MOOT.

                                       I. BACKGROUND

       By letter dated September 28, 2011, the Plaintiff submitted a Freedom of Information Act

(“FOIA”) request to ICE seeking (among other things): (1) “any and all information relating to

the raid of Agriprocessors, Inc., a meatpacking plant in Postville, Iowa, on May 12, 2008 (“the

raid”) and the subsequent prosecution of Sholom Rubashkin”; (2) “any and all information

relating to actions proposed to take place in year 2000 against Agriprocessors, Inc., as

documented in the Des Moines Register’s August 6, 2011 article, ‘Immigrant Raid Halted in

2000 on Election Fear, Ex-Agent Says’”; (3) “any and all information relating to any actions

considered to take place against Iowa Turkey Products, Inc. of Postville, IA”; (4) “any and all

information relating to the class action case Salazar v. Agriprocessors, 527 F. Supp. 2d 873

(N.D. Iowa 2007)”; and (5) any and all documents reflecting communications between “any

government agency or official” and at least 101 identified individuals regarding Mr. Rubashkin

or Agriprocessors. Pl.’s Ex. A (9/28/11 FOIA Request) at 2-7. The Plaintiff’s request included

40 numbered paragraphs outlining his specific requests. Id.

       ICE received the Plaintiff’s request on October 4, 2011.          Def.’s Stmt. ¶ 1.3    ICE

determined that the Plaintiff’s September 2011 request was similar to a FOIA request submitted

on behalf of Mr. Rubashkin by his prior counsel in fiscal year 2009, which had been the subject

       3
           The Court shall refer to ICE’s Statement of Material Facts (“Def.’s Stmt.”), or directly
to the record, unless a statement is contradicted by the Plaintiff, in which case the Court may cite
to Plaintiff’s Response to the Statement of Material Facts (“Pl.’s Resp. Stmt.”).
                                                  2
of litigation between Mr. Rubashkin and ICE. Def.’s Stmt. ¶¶ 2-3. In particular, ICE determined

that the first 15 paragraphs sought information similar to that at issue in the 2009 request, though

the remaining 25 paragraphs were unrelated to the earlier request. Id. at ¶¶ 5-6; see also Pl.’s Ex.

B (2/5/09 FOIA Request). ICE instructed three separate offices to conduct searches for records

responsive to the remaining 25 paragraphs unrelated to the 2009 request. Id. at ¶ 7.

       ICE provided its initial response to the Plaintiff’s September 2011 request on January 3,

2012, purporting to enclose the documents released in response to the 2009 request. Def.’s Stmt.

¶¶ 9-13. The parties dispute whether the January 2012 production included all of the documents

released in response to the 2009 request. Def.’s Stmt. ¶ 10; Pl.’s Resp. ¶ 10. ICE issued its final

response to the Plaintiff’s request on February 16, 2012. Law Decl., Ex. A (2/16/12 Ltr. to Pl.).

ICE indicated that it had located 166 pages and three spreadsheets responsive to the Plaintiff’s

request. Id. at 4. ICE withheld portions of 155 pages and each of the three spreadsheets

“pursuant to exemptions (b)(5), (b)(6), (b)(7)(C) and (b)(7)(E) of the FOIA.” Id.; see also id. at

4-5 (explaining the exemptions in detail).       The agency also determined that information

responsive to paragraphs 13, 14, 15, 33, and 34 of the Plaintiff’s request, “if the records exist,

would be under the purview of the Department of Justice, Executive Office of Unite[d] States

Attorneys,” and provided contact information for the Executive Office. Id. at 5. The letter

informed the Plaintiff that if he wished to appeal ICE’s withholding determination, he must do so

within 60 days. Id.

       The Plaintiff appealed ICE’s final response to his request through a letter dated March

16, 2012. Law Decl., Ex. B (3/16/12 FOIA Appeal). The Plaintiff argued that “[t]he 2011

request fully encompassed and expanded upon the 2009 request,” but “ICE’s response to the

2011 request included far less information than the response to the 2009 request.” Id. at 1. The

                                                 3
Plaintiff also suggested ICE “excessively redacted documents that were produced,” misapplied

certain exemptions, and “provided insufficient explanations for withholding information.” Id. at

2-3. The Plaintiff requested that ICE “[f]ully respond to the 2011 request,” “[r]e-evaluate the use

of exemptions,” and “[w]here there is [sic] statutory basis for redaction, produce a Vaughn list

explaining the withheld information and justifying the withholding.” Id. at 4. The Plaintiff’s

appeal letter further indicated that “[i]f no commitment has been provided by March 22, 2012,

Mr. Rubashkin will seek court enforcement of his request.” Id.

       ICE received the Plaintiff’s appeal on March 19, 2012, and acknowledged the appeal in a

letter dated March 22, 2012. Def.’s Stmt. ¶¶ 22-23; Law Decl., Ex. C (3/22/12 Ltr. to Pl.). The

letter indicated the Department of Homeland Security had received the Plaintiff’s appeal and

assigned the appeal number OPLA12-453. Law Decl., Ex. C. The letter indicated that “[a] high

number of FOIA/PA requests have been received by the Department,” and the agency has

“adopted the court-sanctioned practice of generally handling backlogged appeals on a first-in,

first-out basis,” although appeals of expedited treatment denials are handled on an expedited

basis. Id. The letter informed the Plaintiff that “[w]hile we will make every effort to process

your appeal on a timely basis, there may be some delay in resolving this matter.” Id.

       According to ICE, the Plaintiff called the ICE FOIA office on March 23, 2012, inquiring

as to when he would receive a response to his appeal. Def.’s Stmt. ¶ 25. ICE informed the

Plaintiff that it had just received the Plaintiff’s appeal that week, and the Plaintiff purportedly

responded by threatening to file suit over ICE’s “slow” response, and hung up. Id. at ¶ 26.4 The



       4
           Inexplicably, the Plaintiff denies the Defendant’s characterization of this conversation
in his response to the Defendant’s statement of facts, but does not offer his own version of events
until his Reply brief. See generally Pl.’s Reply, Ex. C. (Suppl. Rosenberg Decl.). The issue was
squarely presented in the Defendant’s initial brief, therefore the Court, shall not consider the
                                                  4
Plaintiff filed suit that same day, alleging “ICE informed [the Plaintiff] that it was not prepared

to give any timetable for the resolution of Mr. Rosenberg’s appeal.” Compl., ECF No. [1], ¶ 26.

Pursuant to 6 C.F.R. § 5.9(a)(3), ICE administratively closed the Plaintiff’s appeal after he filed

suit. Law Decl., Ex. D (4/13/12 Ltr. to Pl.); see 6 C.F.R. § 5.9(a)(3) (“An appeal ordinarily will

not be acted on if the request becomes a matter of FOIA litigation.”).

       ICE moves to dismiss the Plaintiff’s Complaint or in the alternative for summary

judgment on the grounds the Plaintiff failed to exhaust his administrative remedies. For his part,

the Plaintiff moves for summary judgment, arguing that ICE failed to conduct an adequate search

for potentially responsive documents and seeks an order compelling ICE to produce a Vaughn

index for all redacted documents.

                                    II. LEGAL STANDARD

       ICE moves to dismiss the Complaint pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6).     The administrative exhaustion requirement under the Freedom of

Information Act is not jurisdictional, therefore Rule 12(b)(1) is inapplicable to the present

motion. Ivey v. Paulson, 227 F. App’x 1 (D.C. Cir. 2007). Furthermore, Rule 12(d) provides

that “[i]f, on a motion under Rule 12(b)(6) [] matters outside the pleadings are presented to and

not excluded by the court, the motion must be treated as one for summary judgment under Rule

56.” Here, both parties rely on evidence outside the pleadings to support their respective

positions regarding the Defendant’s motion to dismiss for failure to state a claim. Therefore the

Court will treat Defendant’s motion as a motion for summary judgment. Colbert v. Potter, 471

F.3d 158, 167–68 (D.C. Cir. 2006).


evidence provided for the first time in the Plaintiff’s Reply See, e.g., Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008). In any event, the precise nature of the March
23 conversation is irrelevant to the disposition of ICE’s motion.
                                                  5
       A.      Summary Judgment Standard

       “The court shall grant summary judgment 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(a).

       A party asserting that a fact cannot be or is genuinely disputed must support the
       assertion by:

               (A) citing to particular parts of materials in the record, including
               depositions, documents, electronically stored information, affidavits or
               declarations, stipulations (including those made for purposes of the motion
               only), admissions, interrogatory answers, or other materials); or

               (B) showing that the materials cited do not establish the absence or
               presence of a genuine dispute, or that an adverse party cannot produce
               admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “If a party fails to properly support an assertion of fact or fails to

properly address another party's assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for purposes of the motion.”       Fed. R. Civ. P. 56(e).       When

considering a motion for summary judgment, the court may not make credibility determinations

or weigh the evidence; the evidence must be analyzed in the light most favorable to the

nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). “If material facts are at issue, or, though undisputed, are

susceptible to divergent inferences, summary judgment is not available.” Moore v. Hartman,

571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).

       The moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The mere existence of a

factual dispute, by itself, is insufficient to bar summary judgment. See Liberty Lobby, 477 U.S.

at 248. “Only disputes over facts that might affect the outcome of the suit under the governing

                                                6
law will properly preclude the entry of summary judgment.” Id. For a dispute about a material

fact to be “genuine,” there must be sufficient admissible evidence that a reasonable trier of fact

could find for the nonmoving party. Id. The Court must determine “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Id. at 251–52. “If the evidence is merely

colorable, or is not sufficiently probative, summary judgment may be granted.” Id. at 249–50

(internal citations omitted). The adverse party must “do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis in the

record cannot create a genuine dispute. See Ass’n of Flight Attendants–CWA v. U.S. Dep’t of

Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009).

       B.      Exhaustion of Administrative Remedies & the Freedom of Information Act

       Under the Freedom of Information Act, “[e]xhaustion of administrative remedies is

generally required before seeking judicial review ‘so that the agency has an opportunity to

exercise its discretion and expertise on the matter and to make a factual record to support its

decision.’” Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004) (quoting Oglesby v. U.S. Dep’t of

Army, 920 F.2d 57, 61 (D.C. Cir. 1990)). In this context, the doctrine is “jurisprudential” and

“not jurisdictional.” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). Generally speaking,

a plaintiff’s “failure to exhaust precludes judicial review if ‘the purposes of exhaustion’ and the

‘particular administrative scheme’ support such a bar.” Id. at 1258–59 (quoting Oglesby, 920

F.2d at 61). The exhaustion requirement ensures that “the agency has an opportunity to exercise

its discretion and expertise on the matter and to make a factual record to support its decision.

Oglesby, 920 F.2d at 61.

                                                7
                                        III. DISCUSSION

       The Freedom of Information Act requires an agency to

       make a determination with respect to any appeal within twenty days (excepting
       Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If
       on appeal the denial of the request for records is in whole or in part upheld, the
       agency shall notify the person making such request of the provisions for judicial
       review of that determination under paragraph (4) of this subsection.

5 U.S.C. § 552(a)(6)(A)(ii). The Plaintiff filed suit on the fourth business day after ICE received

the Plaintiff’s letter appealing the agency’s final response to the Plaintiff’s September 2011

FOIA request. The Plaintiff argues that he actually exhausted his administrative remedies

because ICE’s March 22, 2012, letter constituted a denial of his request to expedite his appeal.

In the alternative, the Plaintiff contends the Court should excuse any failure to exhaust his

administrative remedies because any appeal would have been futile and the Plaintiff’s client

faces irreparable harm if exhaustion is required. For the reasons set forth below, even if ICE’s

March 22, 2012, letter constituted a denial of the Plaintiff’s request to expedite his appeal, the

Plaintiff failed to exhaust his administrative remedies as to the underlying merits of his appeal.

Furthermore, the equitable considerations in this case do no warrant excusing the Plaintiff’s

failure to exhaust his administrative remedies.

       A.      Plaintiff Failed to Exhaust His Administrative Remedies

       In the administrative setting, two conditions must be met in order for an agency action to

be final: (1) “the action must mark the consummation of the agency’s decisionmaking process—

it must not be of a merely tentative or interlocutory nature”; and (2) “the action must be one by

which rights or obligations have been determined, or from which legal consequences will flow.”

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C. Cir. 2000). ICE’s March 22, 2012,

letter acknowledging the Plaintiff’s appeal fails to satisfy either element.

                                                  8
       The Plaintiff argues that ICE’s March 22 letter “was the culmination of agency decision-

making” because the letter was signed on behalf of Susan Mathias, the Chief of the Government

Information Law Division at the ICE Office of the Principal Legal Advisor in the Department of

Homeland Security. Pl.’s Cross-Mot. at 6. The signatory is irrelevant at this point when the only

thing the letter purported to do was to acknowledge receipt of the Plaintiff’s appeal and indicate

there may be some delay in processing the appeal. The letter did not purport to address any of

the substantive issues raised in the Plaintiff’s appeal.      Rather, Ms. Mathias issued “ICE’s

standard appeal acknowledgment letter, similar to hundreds of other appeal acknowledgment

letters that ICE sends each year.” Suppl. Law Decl. ¶ 22.

       In his cross-motion, the Plaintiff emphasizes that “[r]ather than wait through its

statutorily-granted 20 days, ICE sent Plaintiff its determination only six days after Plaintiff wrote

it.” This argument assumes that which the Plaintiff seeks to prove: that the Mach 22 letter was a

determination by the agency. The fact that “ICE’s letter spoke to Plaintiff’s time concerns, even

though it made clear that it would not act in an urgent or expedited manner” at best means the

letter constituted the consummation of the agency’s decisionmaking process as to the timing of

the Plaintiff’s appeal. The letter did not purport to convey any agency position regarding the

merits of the Plaintiff’s appeal, much less the agency’s final decision.

       The Plaintiff suggests that “ICE’s refusal to act urgently was tantamount to a final agency

action” on the merits of his appeal. Pl.’s Cross-Mot. at 6. The Plaintiff cites to the D.C.

Circuit’s decision in Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093 (D.C. Cir.

1970), which held that an agency’s inaction on a request for interim suspension of registration of

products containing the pesticide DDT “is the equivalent of an order denying relief.” Id. at 1099.

The court explained that “[t]he suspension power is designed to protect the public from an

                                                 9
‘imminent hazard’; if petitioners are right in their claim that DDT presents a hazard sufficient to

warrant suspension, then even a temporary refusal to suspend results in irreparable injury on a

massive scale.” Id. No such “imminent hazard” existed in this case: the Plaintiff merely

indicated that Mr. Rubashkin “hope[d] to use any responsive information in court proceedings

with strict time limits on filing.” Law Decl., Ex. B at 4. The Plaintiff did not assert that any of

those time limits were forthcoming. Moreover, the Plaintiff waited over four weeks after the

agency submitted its final response to his request before filing an appeal. Even now the only

filing deadline identified by the Plaintiff is October 1, 2013, but this deadline was not known by

the Plaintiff at the time he filed his appeal with ICE. There is no basis in the record to conclude

that Mr. Rubashkin faced any “imminent hazard” such that ICE’s March 22, 2012, letter

constituted a denial of the merits of appeal.

       For the same reason, the Plaintiff’s suggestion that the March 22 letter “meets the

‘creates legal consequences’ test of a final agency action,” is meritless. Pl.’s Cross-Mot. at 7.

The Plaintiff does not claim (much less show) that the agency’s refusal to expedite his appeal

precluded Mr. Rubashkin from using responsive materials in court filings, or had any other legal

consequence for the Plaintiff.

       Assuming arguendo5 ICE’s March 22, 2012, letter amounted to a denial of a request for

expedited consideration of the Plaintiff’s appeal, at best the Plaintiff has exhausted his
       5
          The Court emphasizes that it assumes without deciding that the Plaintiff exhausted his
administrative remedies with respect to his “request” for expedited processing of his appeal. As
ICE notes, the Plaintiff’s March 16 appeal failed to comply with the agency’s regulations
governing requests for expedited treatment of appeals. See 6 C.F.R. § 5.5(d). Thus, the Plaintiff
arguably failed to exhaust his administrative remedies even as to his request for expedited
processing. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003); Flaherty
v. President of the U.S., 796 F. Supp. 2d. 201, 207 (D.D.C. 2011) (“Where a request does not
comply with published regulations, the FOIA claim is subject to dismissal for failure to exhaust
administrative remedies.”).

                                                10
administrative remedies as to the request for expedited treatment of his appeal.6 As the D.C.

Circuit has explained, even if a party files a timely appeal, if the agency is not provided an

opportunity to address the merits of the party’s appeal, “it d[oes] not promote the purposes of the

exhaustion doctrine.” Hidalgo, 344 F.3d at 1259. Hidalgo filed an appeal before the FBI acted

on his FOIA request, and thus technically appealed within the time frame set forth by the FBI’s

regulations. Id. at 1259. However, because Hidalgo filed the appeal before the FBI responded to

his request “the appeal could not and did not place the substance of the FBI’s response before the

OIP. Thus, the OIP had no opportunity to consider the very issues that Hidalgo has raised in

court: whether the requested information is covered under FOIA Exemptions.” Id. The court

concluded that Hidalgo’s premature appeal “‘cut off the agency’s power to correct or rethink

initial misjudgments or errors,’” thus “frustrat[ing] the policies underlying the exhaustion

requirement.” Id. at 1260 (quoting Oglesby, 920 F.2d at 64).

       Similarly, even if a party exhausts his administrative remedies as to a particular aspect of

his claim, the court’s review is limited to those objections and arguments that were subject to full

administrative review. Dettman v. U.S. Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)

(“In the course of the years of communications back and forth between requester and agency,

Dettmann made no attempt to present for administrative review any objections she may have had

to the FBI's handling of ‘see’ reference documents.        If exhaustion of remedies is to have

meaning, it surely must bar review of the claim advanced here.”). For example, in Porter v. CIA,

       6
          ICE argues that Plaintiff should be barred from arguing that he requested expedited
review because “Plaintiff never made such a claim in his Complaint or indeed, any previous
submissions to this Court.” Def.’s Reply at 8. However, the Defendant offers no explanation as
to why the Plaintiff was required to include this allegation in his Complaint when the Plaintiff is
not seeking review by this Court of the denial of his (alleged) request for expedited review. Pl.’s
Reply at 2 (“Plaintiff is not asking this Court to expedite its proceedings or to remand and order
expedited treatment.”).
                                                 11
778 F. Supp. 2d 60 (D.D.C. 2011), Judge James E. Boasberg explained that although Porter

administratively appealed the adequacy of the search conducted by the agency, “[a]t no point

during the appeal process did Plaintiff ever aver that he was appealing the timeframe of the

search.” Id. at 68. “Because he failed to do so,” the court found that summary judgment on the

issue of the timeframe of the search was “consistent with the purposes of exhaustion and FOIA's

detailed administrative scheme.” Id.

       Failure to exhaust administrative remedies is not a mere technicality, and a court
       must decline to decide the merits of an unexhausted FOIA claim when the
       plaintiff fails to comply with procedures for administrative review, denying the
       agency an opportunity to review its initial determination, apply its expertise,
       correct any errors, and create an ample record in the process.

Nat’l Sec. Counselors v. CIA, --- F. Supp. 2d ---, 2013 WL 1141768, at *13 (D.D.C. Mar. 20,

2013). Here, the Plaintiff filed suit just three days after ICE received his appeal and before the

agency had the opportunity to consider any of the Plaintiff’s substantive arguments regarding the

scope of the agency’s search, applicability of certain withholdings, and need for a Vaughn index.

The Plaintiff filed suit before the agency issued a final determination on the merits of his appeal,

and weeks before the agency was required by statute to issue a final determination, thus denying

the agency the opportunity to review its initial determination, correct any errors, or create an

adequate record. Accordingly, the Court finds the Plaintiff failed to exhaust his administrative

remedies as to the substantive objections he raises to ICE’s response to his FOIA request.

       B.      Equitable Considerations Do Not Warrant Excusing the Exhaustion Requirement

       The Plaintiff contends that even if, as the Court concludes, he failed to exhaust his

administrative remedies, the Court should excuse that failure for two reasons: (1) exhaustion of

his administrative remedies would have been futile; and (2) “Plaintiff’s client Sholom Rubashkin

will suffer irreparable harm if he cannot get judicial review very soon.” Pl.’s Cross-Mot. at 8.

                                                12
Neither argument is sufficient to justify excusing the Plaintiff’s failure to exhaust his

administrative remedies in this case.

       With respect to the futility issue, the Plaintiff cites no authority demonstrating that the

futility exception applies to the administrative exhaustion requirement under the FOIA.7 Courts

“will not read futility or other exceptions into statutory exhaustion requirements where Congress

has provided otherwise.” Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). “[B]inding Circuit

precedent could not be clearer: exhaustion of administrative remedies ‘is a mandatory

prerequisite to a lawsuit under FOIA.’” Freedom Watch, Inc. v. CIA, 895 F. Supp. 2d 221, 227

n.2 (D.D.C. 2012) (quoting Wilbur, 355 F.3d at 676); but see Armstrong v. Bush, 807 F. Supp.

816 (D.D.C. 1992).

       Assuming the futility exception applied in the FOIA context, exhaustion may only be

excused “where it would be ‘futile because of certainty of an adverse decision.’” Armstrong,

807 F. Supp. 816 (D.D.C. 1992) (quoting James v. U.S. Dep’t of Health & Human Servs., 824

F.2d 1132, 1138 (D.C. Cir. 1987)). The Plaintiff avers that Venetia Bell, former counsel for the

Defendants in this action, informed the Plaintiff that “ICE would not agree to search for or

produce any additional documents and would not agree to prepare a Vaughn declaration.” Pl.’s

Ex. C (Rosenberg Decl.) ¶ 6; id. at ¶ 8 (“Ms. Bell made clear that ICE would not change its

position absent a judicial order.”). However, Ms. Bell’s communications with ICE indicate that

the agency did not intend to change its position until after the Court ruled on the exhaustion

issue. Def.’s Reply, Ex. 2 (Email E. Clifford to V. Bell). Erin Clifford, an associate legal

       7
         Rather, the Plaintiff’s Cross-Motion cites Jasperson v. Federal Bureau of Prisons, 460
F. Supp. 2d 76 (D.D.C. 2006), and American Council of the Blind v. Snow, 311 F. Supp. 2d 86
(D.D.C. 2004), which applied the futility exception in the context of the Administrative
Procedures Act and the Rehabilitation Act, respectively. Jasperson, 460 F. Supp. 2d at 87;
Snow, 311 F. Supp. 2d at 90.
                                               13
advisor with the Government Information Law Division, Office of the Principal Legal Advisor to

ICE, explained ICE’s position as follows:

       We released all documents that were responsive to this FOIA request that were
       previously released in the associated litigation that they filed on this request back
       in 2009. They are not missing anything from the previous release. They will
       need to be more specific and point to something more than just a FOIA request,
       otherwise ICE is done with searching and production in this case.

       If they will not narrow the exemption challenges, ICE FOIA can begin working
       on a Vaughn for this case, but we still expect to make the non-exhaustion
       argument first. In addition, prior to beginning the Vaughn ICE would like to have
       a better sense of the timeline of the case. We would need until Dec. to do a full
       Vaughn, although we have a categorized Vaughn for the prior FOIA documents
       created already that was released in the litigation in 2009. We can provide that as
       soon as they would want it (after our exhaustion argument though), and maybe
       then they can narrow the challenges?

       And ICE is still unclear as to what specifically they are challenging regarding the
       search.

Def.’s Reply, Ex. 2 at 1. Mr. Clifford’s email demonstrates that even now the agency’s position

with respect to the Plaintiff’s appeal is not certain, much less certain to be adverse. The fact that

the agency has elected to await the Court’s disposition of the present motions before drafting a

Vaughn index or otherwise reconsidering its response to the Plaintiff’s request does not show

futility. Furthermore, the fact that the Defendant did not offer a declaration from Ms. Bell

regarding her conversation(s) with the Plaintiff is irrelevant. Regardless of what Ms. Bell did or

did not say to the Plaintiff, the agency itself has indicated that it is willing to produce a Vaughn

index and reconsider certain issues if additional information is provided by the Plaintiff. On this

record, the Plaintiff failed to establish administrative exhaustion of his remedies would have

been futile.

       The Plaintiff further argues that the Court should excuse his failure to exhaust his

administrative remedies because if the Plaintiff does not receive ICE’s documentation soon, he

                                                 14
will be unable to use it as part of a motion to vacate Mr. Rubashkin’s sentence pursuant to 28

U.S.C. § 2255. As with his futility argument, the Plaintiff offers no legal authority for the

proposition that the Court can excuse the requirement that the Plaintiff exhaust his administrative

remedies before seeking judicial review of an agency’s response to his FOIA request.

Furthermore, in lamenting the amount of time that has elapsed since the Plaintiff submitted his

request to ICE, the Plaintiff omits the fact that rather than file suit after ICE failed to initially

comply with the statutory deadlines, he waited over five months for the agency to respond. Once

the agency issued its final response, the Plaintiff waited a month before filing his appeal and the

Plaintiff did not perfect service of process until two months after filing the Complaint in this

case. As the Plaintiff notes, “[a]n adverse decision on exhaustion would, at worst, result in a re-

filing of the same FOIA request.” Pl.’s Cross-Mot. at 13. The Plaintiff could have re-filed his

request and exhausted his administrative remedies before the parties completed briefing the

present motion.

       The Plaintiff’s suggests that Mr. Rubashkin has already suffered irreparable injury due to

ICE’s delay in processing the Plaintiff’s request, stating that “[s]ubsequent to making his

September 28, 2011 FOIA request, Mr. Rubashkin was forced to mount an appeal to the Eighth

Circuit. He lost.” Pl.’s Reply at 17. This assertion is incredibly misleading if not outright false.

The docket indicates Mr. Rubashkin’s direct appeal was fully briefed on April 19, 2011, argued

and submitted on June 15, 2011, and denied by the Eighth Circuit on September 16, 2011—

twelve days before the Plaintiff filed his FOIA request with ICE. Mr. Rubashkin filed a petition

for rehearing on October 11, 2011, only one week after ICE received the Plaintiff’s FOIA

request. The petition for rehearing was denied on November 3, 2011, beginning the clock for the

Plaintiff to file a petition for a writ of certiorari. ICE did not respond to the Plaintiff’s request

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within the statutory deadline, yet the Plaintiff did not file suit. Instead, the Plaintiff waited for

the agency’s final response, which did not come until February 2012. The Plaintiff then waited a

month after the agency issued its final response before pursuing an administrative appeal. The

Plaintiff was complicit in the delay that prevented Mr. Rubashkin from utilizing any documents

from ICE as part of Mr. Rubashkin’s petition for a writ of certiorari.

       Moreover, the “irreparable injury” alleged in this case is that the Plaintiff’s client would

be unable to use any information obtained from ICE (if the Plaintiff proved successful in this

matter) as part of a collateral attack on Mr. Rubashkin’s conviction. If the Plaintiff were to

obtain newly discovered evidence from a successful challenge to ICE’s response, the Plaintiff

could amend his initial section 2255 motion (if still pending), or file a second motion, albeit with

additional procedural hurdles. See 28 U.S.C. § 2255(h). On the present record, the agency’s

interest in having the opportunity to correct its own errors and create an adequate record for

review outweigh the Plaintiff’s interest in immediate judicial review, particularly in light of the

Plaintiff’s extensive delay in pursuing his own claims. McCarthy v. Madigan, 503 U.S. 140, 146

(1992). Therefore, even if it has the authority to do so, the Court declines to excuse the

Plaintiff’s failure to exhaust his administrative remedies.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court finds the Plaintiff failed to exhaust his administrative

remedies regarding his claim against United States Immigration and Customs Enforcement.

Even if the agency denied the Plaintiff’s request for expedited processing of his appeal, the

Plaintiff failed to exhaust his administrative remedies as to the merits of his objections to ICE’s

response to his FOIA request. Furthermore, the Plaintiff offers no authority for the proposition

that the Court can excuse the Plaintiff’s failure to exhaust because of futility or irreparable

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injury. Regardless, the Plaintiff failed to establish that further administrative review of his

claims would have been futile, or that his client will suffer irreparable injury absent immediate

judicial review. Therefore, ICE is entitled to summary judgment on the grounds the Plaintiff

failed to exhaust his administrative remedies before seeking judicial review, and the Plaintiff’s

cross-motion for summary judgment is moot.           An appropriate Order accompanies this

Memorandum Opinion.



                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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