                           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 23, 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, the United States Marshals Service (the “Marshals Service”), the

Executive Office for United States Attorneys (the “EOUSA”), and the Federal Bureau of

Investigation. Presently before the Court is the EOUSA and Marshals Service’s [27] Motion to

Dismiss, or Alternatively, Motion for Summary Judgment, and the Plaintiff’s [36] Cross-Motion

for Summary Judgment. Upon consideration of the pleadings,2 the relevant legal authorities, and


       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
          Defs.’ Mot., ECF No. [27]; Pl.’s Opp’n & Cross-Mot. (“Pl.’s Cross-Mot.”), ECF Nos.
[35, 36]; Defs.’ Reply & Opp’n to Pl.’s Cross-Mot. (“Defs.’ Reply”), ECF Nos. [39, 40]; Pl.’s
Reply, ECF No. [44]. The Plaintiff’s Supplement, ECF No. [60], addresses only the merits of
certain withholdings by various agencies, an issue the Court does not reach in the context of the
Plaintiff’s FOIA requests to the EOUSA and the Marshals Service.
the record as a whole, the Court finds that because the Plaintiff failed to pay the reasonable

search fees requested by the EOUSA for request number 2011-3284, and failed to exhaust his

administrative remedies for requests numbered 2011-3285 and 2011USMS18477. Accordingly,

the EOUSA and the Marshals Service are entitled to summary judgment.

                                     I. BACKGROUND

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

(“FOIA”) request to the EOUSA 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 over 101 individuals regarding Mr. Rubashkin or

Agriprocessors. Vanek Decl., Ex. A (Pl.’s FOIA Request to EOUSA), at 2-7. The Plaintiff’s

request included 40 numbered paragraphs outlining his specific requests. Defs.’ Stmt., ECF No.

[27], ¶ 2.3 The Plaintiff also submitted a signed privacy waiver by Mr. Rubashkin authorizing

the EOUSA to release documents concerning Mr. Rubashkin, but did not submit privacy waivers



       3
           The Court shall refer to the EOUSA and Marshals Service’s (collectively the
“Defendants”) Statement of Material Facts (“Defs.’ 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.”) where appropriate.
                                               2
for any other individual referenced in the Plaintiff’s request. Id. at ¶¶ 5-6.

       EOUSA notified the Plaintiff on October 3, 2011, that his request had been split into 2

separate requests with two separate request numbers:

              Request No. 2011-3284: “Agriprocessors, Inc. (Corp.Docs. Only)& Sholom
               Rubashkin; and

              Request No. 2011-3285: “(Third Parties)”

Brandon Decl., Ex. C (10/3/11 Ltr. to Pl. re Request No. 2011-3284) at 2 (all errors in original).

The letter further indicated that request number 2011-3284 would be processed in the order in

which it was received, unless it is a very large request, in which case it would be placed in the

“Project Requests” group and processed in the order received. Id. at 1. Under separate cover

that same day, with respect to request number 2011-3285, the EOUSA informed the Plaintiff:

       It is the policy of the Executive Office neither to confirm nor deny that records
       concerning living third parties exist. Further, any release to you of such records,
       if they do exist, would be in violation of the Privacy Act. 5 U.S.C. § 552a. The
       requested material would also be exempt from release pursuant to 5 U.S.C.
       § 552(b)(6) and/or (b)(7)(C) which pertain to records whose disclosure would
       result in an unwarranted invasion of personal privacy.

Brandon Decl., Ex. B (10/3/11 Ltr. to Pl. re Request No. 2011-3285). The letter advised the

plaintiff that “[t]his is a final action” on request number 2011-3285, and any appeal must be

received by the Office of Information Policy within 60 days of the date of the letter. Id. The

Plaintiff did not file an administrative appeal of the EOUSA’s decision regarding request number

2011-3285. Defs.’ Stmt. ¶ 10.

       In response to request number 2011-3284, the EOUSA directed the United States

Attorney’s Office for the Northern District of Iowa (“USAO/NDIA”) to conduct a search of

physical and electronic records in response to the Plaintiff’s request.          Defs.’ Stmt. ¶ 13.

USAO/NDIA provided to the Executive Office an outline of the search efforts it would need to

                                                  3
undertake in response to the Plaintiff’s request, and estimated at least 18,738 hours of search

time would be required to search the its physical records. Id. at ¶¶ 14-15. The USAO/NDIA

concluded that such extensive search efforts would be required because, among other things,

enforcement action against Agriprocessors resulted in approximately 305 cases and involved the

majority of employees in the USAO/NDIA, and a substantial number of documents were sent to

the Litigation Technology Service Center to be digitized. Id. at ¶¶ 16-17. The estimate did not

include time needed to search archived emails of former and current USAO/NDIA employees,

and the files of four previous United States Attorneys who might have responsive records. Id. at

¶ 18. The Information Technology department for the EOUSA estimated that it would cost

approximately $158,000 to restore back-up tapes that may contain email or other electronic

records responsive to the Plaintiff’s request. Id. at ¶¶ 19-22; see also id. at ¶¶ 23-27 (providing

estimates based on specific types of back-up tapes at issue). The EOUSA further approximated

that it would cost $37,684.68 to extract recent emails archived in an “Integrated Archive

Platform.”   Id. at ¶¶ 28-30. Overall, the EOUSA estimates that “the cost of hosting and

processing the data into a database where search terms could be applies would be approximately

$120,000.00,” based on an estimate of 1500 staff hours. Id. at ¶ 31.

       The Plaintiff filed suit on March 22, 2012. On June 8, 2012, the EOUSA notified the

Plaintiff via letter that “[d]ue to the size of your request and the time period from which you seek

records, it will be necessary to restore at least 33 backup tapes containing potentially responsive

records.” Vanek Decl., Ex. G (6/8/12 Ltr. to Pl.) at 1. The EOUSA indicated that approximately

“462.9 hours will be needed for this restoration at a cost of $81.41 per hour,” for a total of

$37,684.68. Id. Furthermore, the EOUSA advised the Plaintiff that “[b]ased on our experience,”

hosting and processing the restored data to allow search terms to be applied would require 1,500

                                                 4
hours at a cost of $80.00 per hour, for a total of $120,000. Id. The letter also advised that the

Plaintiff would also incur a $0.10 per page duplication fee for every page after the first 100 pages

released to the Plaintiff. Id. The letter requested an advance payment of $157,684.68, and stated

that “[p]er 28 C.F.R. § 16.11(f), your request is not considered received until we receive a

response from you. Please respond within 30 days of the date of this letter, or this matter will be

closed.” Id. at 1-2. The letter provided that if the Plaintiff wished to reduce the fees, he could

“reformulate [his] request by limiting the documents to a specific category or categories,” or

“specify that [he would] only pay up to a certain amount.” Id. at 1. The Plaintiff also had the

option to appeal the EOUSA’s response to the OIP within sixty days of the date of the letter. Id.

at 2. The Plaintiff alleges he did not receive the letter until August 2012. Pl.’s Resp. to Defs.’

Stmt., ECF No. [35-2], ¶ 32. There is no record indicating Mr. Rosenberg ever filed an appeal of

the EOUSA’s June 8, 2012, letter. Defs.’ Stmt. ¶ 38. The EOUSA notified the Plaintiff on July

11, 2012, that it had closed request number 2011-3284 after the Plaintiff failed to pay the search

fees within thirty days of the agency’s June 8, 2012, letter. Brandon Decl., Ex. E (7/11/12 Ltr. to

Pl.).

        B.     FOIA Request to the Marshals Service

        William Bordley, Associate General Counsel for the Marshals Service, received a letter

from the Plaintiff on September 28, 2011, 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

                                                 5
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 over 101 individuals regarding Mr. Rubashkin

or Agriprocessors. Bordley Decl., Ex. A (Pl.’s FOIA Request to Marshals Serv.) at 2-7. The

request included written authorization from Mr. Rubashkin to release records to the Plaintiff.

Defs.’ Stmt. ¶ 41.

       The Marshals Service acknowledged receipt of the Plaintiff’s request in a letter dated

October 11, 2011. Defs.’ Stmt. ¶ 42. The letter advised the Plaintiff that the Marshals Service

had assigned request number 2011USMS18477 to the Plaintiff’s submission, and had

“commenced a search for documents responsive to your request and will contact you when our

processing is complete.” Bordley Decl., Ex. B. (10/11/11 Ltr. to Pl.). The Marshals Service also

informed the Plaintiff that “[a]s it appears that some of the documents you request may be

maintained by the [EOUSA], we have forwarded a copy of your request to that office for their

direct response to you.”    Id.   Under separate cover that same day, the Marshals Service

forwarded the Plaintiff’s request to the EOUSA. Bordley Decl., Ex. C (10/11/11 Ltr. to S.

Gerson, Acting Assistant Director, FOIA/Privacy Unit, EOUSA).

       The Marshals Service district office for the Northern District of Iowa conducted the

search for documents responsive to the Plaintiff’s request. Defs.’ Stmt. ¶ 44. Mr Bordley

indicates that the Northern District of Iowa “was the district where the [Marshals Service] would

reasonably be expected to find responsive records as the [sic] Sholom Mordechai Rubashkin’s

criminal case arose in the Northern District of Iowa.” Bordley Decl. ¶ 5. The FOIA liaison for

the Northern District of Iowa office was asked to search for “records pertaining to Sholom

                                                6
Mordechai Rubashkin and [quoting the request] ‘a raid’ on Agriprocessors, Inc., in Postville,

Iowa, on May 12, 2008, and actions against Iowa Turkey Products, Inc., Postville, Iowa.” Id.

       On November 2, 2011, the Marshals Service notified the Plaintiff that it had located 166

pages responsive to the Plaintiff’s request. Bordley Decl., Ex. D (11/2/11 Ltr. to Pl.) at 1. The

agency determined 98 pages originated with or contained information which originated from the

EOUSA or Immigration and Customs Enforcement, and referred those pages to the originating

agencies for disclosure determination and a direct response to the Plaintiff.4 Id. at 1. The

November 2 letter enclosed 68 pages that were released in full or in part. Id. at 1; see id.

(identifying exemption pursuant to which information was withheld from the 68 pages). The

letter informed the Plaintiff that “[i]f you are dissatisfied with [the agency’s] action on this

request, you may appeal by writing to the Director, Office of Information Policy.” Id. at 2. The

appeal “must be received by OIP within 60 days of the date of this letter.” Id. The Plaintiff did

not appeal the Marshals Service’s November 2 determination. Defs.’ Stmt. ¶ 52.

                                   II. LEGAL STANDARD

       The Defendants move to dismiss the Plaintiff’s Complaint as to the EOUSA and the

Marshals Service for failure to state a claim, or in the alternative, for summary judgment.

Federal Rule of Civil Procedure 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 Defendants’ motion.

       4
          The EOUSA responded directly to the Plaintiff on November 25, 2011, and released 41
pages in full, 18 pages in part. Defs.’ Stmt. ¶ 49 n.2. The EOUSA withheld 2 pages in full, and
indicated five pages were duplicates. Id. The Plaintiff did not appeal the EOUSA’s response.
Id. The Court shall address the pages referred to Immigration and Customs Enforcement under
separate cover.
                                                 7
Therefore the Court will treat Defendants’ motion as a motion for summary judgment. Colbert

v. Potter, 471 F.3d 158, 167–68 (D.C. Cir. 2006). The Plaintiff cross-moves for summary

judgment on the issue of administrative exhaustion of his claims against the EOUSA and the

Marshals Service.

       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).

                                                8
       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

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. Central Intelligence Agency, 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. Fed. Bureau of Investigation, 344 F.3d

1256, 1258 (D.C. Cir. 2003). Generally speaking, a plaintiff’s “failure to exhaust precludes

                                                9
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.

                                       III. DISCUSSION

       The EOUSA and Marshals Service argue they are entitled to summary judgment because

the Plaintiff failed to pay the search fees requested for request number 2011-3284, and failed to

exhaust his administrative remedies for requests numbered 2011-3285 and 2011USMS18477.

The Plaintiff cross-moves for summary judgment on grounds the EOUSA is precluded from

imposing fees in this case, that exhausting his remedies for request number 2011-3285 would

have been futile, and that the Plaintiff constructively exhausted his administrative remedies with

respect to 2011 USMS18477. The Court addresses each of the requests in turn.

       A.      Request No. 2011-3284

       The EOUSA moves for summary judgment with respect to the Plaintiff’s claims

regarding request number 2011-3284 on the grounds the Plaintiff has failed to pay the search

fees requested by the agency. The Plaintiff contends the EOUSA is precluded from imposing

fees because: (1) the EOUSA did not comply with the timing requirements of the FOIA; (2) the

EOUSA did not raise the fee issue during administrative proceedings; and (3) the request for fees

is nothing more than an improper litigation tactic. The Plaintiff further argues that the amount of

fees requested by the EOUSA is unreasonable. None of the Plaintiff’s arguments are persuasive.

               1.     The EOUSA May Impose Search Fees Despite Failing to Comply with the
                      FOIA’s Timing Requirements

       As a threshold matter, the Plaintiff argues the EOUSA is time-barred from requesting

search fees. Section 552(a)(4)(A)(viii) provides
                                               10
       An agency shall not assess search fees (or in the case of a requester described
       under clause (ii)(II), duplication fees) under this subparagraph if the agency fails
       to comply with any time limit under paragraph (6), if no unusual or exceptional
       circumstances (as those terms are defined for purposes of paragraphs (6)(B) and
       (C), respectively) apply to the processing of the request.

5 U.S.C. § 552(a)(4)(A)(viii). Subsection 552(a)(6)(B)(iii) defines “exceptional circumstances”

to include “the need to search for and collect the requested records from field facilities or other

establishments that are separate from the office processing the request,” and “the need to search

for, collect, and appropriately examine a voluminous amount of separate and distinct records

which are demanded in a single request.” Id. § 552(a)(6)(B)(iii)(I)-(II).

       The Plaintiff argues that the EOUSA “has [] clearly failed to meet the time requirements”

of paragraph (6). However, section 552(a)(4)(A)(viii) permits the agency to impose search fees

even if it did not comply with the time requirements of paragraph (6) if “unusual or exceptional

circumstances,” as defined “for purposes of paragraphs (6)(B) and (C)” apply to the Plaintiff’s

request. 5 U.S.C. § 552(a)(4)(A)(viii). As defined by paragraph (6)(B), unusual circumstances

exist in this case because EOUSA needed to search for and collect records from the United States

Attorney’s Office for the Northern District of Iowa. Id. § 552(a)(6)(B)(iii)(I). Because unusual

circumstances apply to the Plaintiff’s request, the EOUSA is entitled to impose search fees on

the Plaintiff despite failing to comply with the timing requirements of paragraph (6).5

       In addition to defining “unusual circumstances,” paragraph (6)(B) sets forth steps the

agency must take to notify the requestor that the agency needs additional time to process the

request. 5 U.S.C. § 552(a)(6)(B)(i)-(ii). The Plaintiff argues that because the EOUSA did not


       5
         The Plaintiff’s reliance on Bensman v. National Park Service, 806 F. Supp. 2d 31
(D.D.C. 2011), is misplaced because, among other things, the agency did not identify exceptional
circumstances as defined by paragraph (6)(B) and (C) to excuse its failure to timely decide a
request for a fee waiver, and the agency’s regulations precluded the agency from taking
additional time to decide whether to grant a fee waiver. Id. at 43.
                                                11
comply with the procedural requirements for seeking additional time under paragraph (6)(B), the

exception in paragraph (4)(A)(viii) for “unusual circumstances” does not apply in this case. The

plain text of section 552(a)(4)(A)(viii) requires only that unusual circumstances as defined by

paragraph (6)(B) or (C), not that unusual circumstances exist and that the agency properly seek

additional time to respond to the request in light of unusual circumstances. The Plaintiff laments

that “[i]f the agency is permitted to assess search fees after an eight-month practice of non-

communication, including seven months during which it knew of the relevant information that its

field office may have had, it is difficult to imagine when Section 552(a)(4)(A)(viii) would have

any effect.” Pl.’s Reply at 7. To be accurate, the record indicates the EOUSA did not receive

the estimate for restoring and hosting backup tapes until May 2012, one month before the fee

request was transmitted to the Plaintiff. Vanek Decl., Ex. E. In any event, this section applies in

every case in which unusual circumstances do not exist. Because unusual circumstances exist

with respect to request number 2011-3284, section 552(a)(4)(A)(viii) does not preclude the

EOUSA from imposing search fees despite the agency’s failure to comply with the FOIA’s

timing requirements.6

               2.       EOUSA May Raise the Fee Issue for the First Time After the Plaintiff
                        Filed Suit

       The Plaintiff further argues that the EOUSA is precluded from raising any argument
       6
            The EOUSA suggests in its motion that 20-day time limit in which the agency was
required to respond to request number 2011-3284 was tolled pursuant to section
552(a)(6)(A)(ii)(II), which provides that “[t]he 20-day period shall not be tolled by the agency
except if necessary to clarify with the requester issues regarding fee assessment. . . . [T]he
agency’s receipt of the requester’s response to the agency’s request for information or
clarification ends the tolling period.” 5 U.S.C. § 552(a)(6)(A)(ii)(II). The EOUSA offers not
authority for the proposition that the tolling period includes the time during which the agency is
gathering information before requesting clarification from the requestor. Defs.’ Mot. at 10-11.
However, the Court does not reach this issue because the EOUSA is entitled to impose search
fees even if the 20-day period expired before the agency submitted its request for fees to the
Plaintiff.
                                                 12
regarding fees because “the fees were neither requested before litigation, nor argued at the

administrative level.” Pl.’s Cross-Mot. at 13. The fact that a fee request was made after the

Plaintiff commenced litigation does not excuse the Plaintiff from paying the requested fees.

Pollack v. Dep’t of Justice, 49 F.3d 115, 120 (4th Cir. 1995), cert denied, 516 U.S. 843 (1995)

(rejecting the Plaintiff’s argument that “once he commenced an action in court to enforce his

FOIA request, he was relieved of any obligation to pay for documents”); see, e.g., Kurdyukov v.

Drug Enforcement Admin., 578 F. Supp. 2d 61, 65-66 (D.D.C. 2008); Farrugia v. Exec. Office

for U.S. Attys., 366 F. Supp. 2d 56, 57 (D.D.C. 2005). The Plaintiff attempts to distinguish

Pollack and similar cases on the grounds “none of those cases accounted for the 2007

amendments that expressly provided for fees to be precluded when an agency has missed time

limits.” Pl.’s Cross-Mot. at 14. As indicated above, the 2007 amendments only preclude an

agency from imposing fees if the agency fails to comply with certain time limits and no unusual

or exceptional circumstances exist. The pre-2007 case law stands for the proposition that when

an agency is permitted to request fees, a plaintiff must pay the fees even if the request is made

after litigation commences. The 2007 amendments limited the situations in which an agency can

impose fees, but has no effect on the principle set forth in Pollack that when a fee request is

valid, a plaintiff must comply, even if the agency did not submit the fee request until after the

plaintiff filed suit.

        The Plaintiff contends the Court should disregard the fee issue because the EOUSA

“completely failed to articulate this position prior to commencement of litigation.” Pl.’s Cross-

Mot. at 13. The Plaintiff is correct that Bensman v. National Park Service, 806 F. Supp. 2d 31

(D.D.C. 2011), Judge James E. Boasberg declined to consider certain arguments raised by the

agency because it “failed to make [the argument] at the administrative level before Plaintiff

                                               13
brought suit.” Bensman, 806 F. Supp. 2d at 43. The Bensman case is inapposite for the simple

reason that Bensman actually exhausted his administrative remedies against the defendant

agency. See id. at 35-36. Mr. Rosenberg instituted this action rather than pursue any appeal of

the EOUSA’s action (or inaction), alleging he constructively exhausted his administrative

remedies. As the Plaintiff noted, “the theory of exhaustion cuts both ways,” Pl.’s Cross-Mot. at

13; the EOUSA cannot be faulted for failing to raise arguments during administrative

proceedings when the Plaintiff elected to bypass administrative proceedings altogether. The

EOUSA is not barred from raising the fee issue for the first time in this Court. Chaplin v.

Stewart, 796 F. Supp. 2d 209, 211-12 (D.D.C. 2011); see Barnard v. Dep’t of Homeland Sec.,

598 F. Supp. 2d 1, 24 (D.D.C. 2009) (“There is no requirement that an agency administratively

invoke an exemption in order to later rely on it in federal court.”).

               3.      The EOUSA’s Fee Request Is Not an Improper Litigation Tactic

       The Plaintiff’s suggestion that the EOUSA’s request for fees is an “improper litigation

tactic” is meritless. Pl.’s Cross-Mot. at 13. First, the undisputed record evidence indicates the

EOUSA began formulating an estimate of the search cost shortly after the Plaintiff submitted his

request and months before the Plaintiff filed suit. Vanek Decl., Ex. C (10/27/11 Email D. Nash

to S. Vanek) (providing estimate of search and sort time for request 2011-3284); Vanek Decl.,

Ex. D (1/12/12 Email D. Heintzelman to S. Vanek) (indicating Ms. Heintzelman was waiting on

additional information to finalize a search cost estimate). Second, the costs the EOUSA would

incur are substantial. It is not as if the EOUSA is refusing to process the Plaintiff’s request

pending payment of a trivial amount of funds.7 Third, the EOUSA has not demanded the



       7
         To be fair, agencies have the right to demand prepayment of search fees in excess of
$250 dollars, even if some requesting parties would consider such amounts trivial. 5 U.S.C.
                                               14
prepayment of all search fees. Specifically, the EOUSA has not sought prepayment of fees

associated with searching physical documents because the agency “does not know the extent to

which there may be overlap between the electronic records and physical records and did not want

to artificially inflate the estimated fee.” Defs.’ Stmt. ¶ 34. The fact that the agency requested

prepayment of only a part of the search fees that may be incurred so as to avoid artificially

increasing the estimate tends to show that the request is made in good faith, and not as a

litigation tactic. Fourth, the fact that the request for prepayment was submitted by the agency

after the Plaintiff filed suit does not necessarily suggest the request is an “improper litigation

tactic.”     Because the Plaintiff purported to constructively rather than actually exhaust his

administrative remedies, by definition every position the EOUSA takes in this case was raised

for the first time after litigation commenced; there were no administrative proceedings during

which the EOUSA could have raised its defenses. On this record, the EOUSA’s fee request is a

reasonable invocation of its right under FOIA to obtain advance payment of search fees and not

merely a “convenient litigating position.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212

(1988).

                  4.      The Plaintiff Failed to Show the Requested Fees are Unreasonable

           Finally, the Plaintiff objects to the requested fees on the grounds the requested amount is

unreasonable. The EOUSA’s request for pre-payment of fees is comprised of two separate

charges: (1) $37,648.68 for the restoration of back-up tapes (462.9 hours at $81.41/hour); and (2)

$120,000, for hosting and processing the data once restored (1,500 hours at $80/hour). Vanek

Decl., Ex. G. The Plaintiff does not dispute that the hourly rates identified by the EOUSA are

consistent with Department of Justice regulations. See 28 C.F.R. § 16.11(c)(1)(iii). Rather, the


§ 552(a)(4)(A)(v).
                                                   15
Plaintiff argues the requested fees are unreasonable for three reasons.

       First, the Plaintiff emphasizes that the EOUSA’s declarant, Sean Vanek, indicated he is

“ignoran[t] of any sort of technology.” Vanek Decl., Ex. F (8/28/12 Email S. Vanek to D.

Heintzelman). This argument is a canard. The EOUSA did not rely on Mr. Vanek to formulate

the estimate. Rather the EOUSA relied on—and Mr. Vanek’s Declaration attributes the estimate

to—the EOUSA’s information technology staff. Vanek Decl. ¶¶ 22-30. The Plaintiff offers no

reason to doubt the knowledge or reliability of the EOUSA information technology staff

responsible for drafting the estimate embodied in the June 8, 2012, fee request letter.

       Second, Mr. Rosenberg asserts in his own declaration that based on his “extensive

experience with electronic discovery,” it would be “quite rare to see any case where the labor

hours required reached 18,000 hours.” Pl.’s Ex. I (Rosenberg Decl.) ¶¶ 22, 24. Mr. Rosenberg

appears to refer to the estimate provided in an October 27, 2011, email in which the

USAO/NDIA estimated it will take “a composite total of 3846 hours of attorney search and sort

time and 14,892 hours and 45 minutes of support staff search time for FOIA request #2011-

3284.” The reasonableness of the October 2011 estimate is irrelevant; the EOUSA has only

requested fees based on the May 2012 estimate of 462.9 hours to restore back-up tapes and 1,500

hours for hosting and processing. Vanek Decl., Exs. E, G. The Plaintiff does not dispute that the

labor estimate outlined in the June 8, 2012, letter (1,962.9 hours total) is unreasonable.

       Third, Mr. Rosenberg generally asserts that “for document restoration costs for one side

to amount to $157,000 or more, even where discovery requires the restoration of dozens or more

back-up tapes” would be “quite rare.” Rosenberg Decl. ¶ 25. Apart from this assertion, the

Plaintiff offers no specific analysis or evidence to demonstrate the requested fees are

unreasonable. The fees are based on estimates of the hours that would be required for each step

                                                 16
in the process of restoring the back-up tapes that may contain potentially responsive documents.

The fees are in accordance with Department of Justice regulations, and the EOUSA provided the

Plaintiff the opportunity to reformulate his request or specify that he would only pay up to a

certain amount. Vanek Decl., Ex. G. The Plaintiff’s “bare allegations” that the EOUSA’s fee

estimate is unreasonable is insufficient to create a genuine issue of material fact sufficient to

avoid summary judgment on this issue. Nat’l Treasury Employees Union v. Griffin, 811 F.2d

644, 650 (D.C. Cir. 1987).

          The EOUSA is entitled to request search fees from the Plaintiff before processing his

request, and the amount of fees requested is reasonable. Because the Plaintiff has not satisfied

his statutory obligation to pay the fees requested in advance of processing the Plaintiff’s request,

the EOUSA is entitled to summary judgment as to request number 2011-3284. Pollack, 49 F.3d

at 120.

          B.     Request No. 2011-3285

          The EOUSA moves for summary judgment regarding request number 2011-3285 on the

grounds the Plaintiff failed to exhaust his administrative remedies. The Plaintiff admits that he

failed to appeal the EOUSA’s denial of this request, and instead argues that the failure should be

excused insofar as any administrative appeal would have been futile.            In support of the

proposition, the Plaintiff relies entirely on Massey v. District of Columbia, 400 F. Supp. 2d 66

(D.D.C. 2005). The Massey court explained that “when it is demonstrated that continuing

through the administrative process would be futile or inadequate,” parents are not required

exhaust their administrative remedies before challenging a school district’s action under the

Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. 400 F. Supp. 2d at 70-71.

The Plaintiff cites no authority demonstrating the futility exception applies to the administrative

                                                17
exhaustion requirement under the FOIA. 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. Central Intelligence Agency, 895 F. Supp. 2d 221, 227 n.2 (D.D.C. 2012) (quoting

Wilbur, 355 F.3d at 676).

       Assuming the exception applies to FOIA requests generally, the Plaintiff argues an

appeal of the agency’s denial of request number 2011-3285 would be futile because the EOUSA

“failed to inform Plaintiff which paragraph or paragraphs had been placed into Request 2011-

3285,” and without that information “Plaintiff simply could not craft an appeal as he could not

even evaluate if the agency had correctly selected a paragraph concerning a third party.” Pl.’s

Cross-Mot. at 18. To the contrary, the EOUSA notified the Plaintiff on October 3, 2011, that the

portion of his request concerning “Third Parties” was assigned request number 2011-3285.

Brandon Decl., Ex. C at 2. The Plaintiff’s request itself is divided into five (unnumbered)

categories. The first (¶¶ 1-15), second (¶¶ 16-25), and fourth (¶¶ 33-34), request documents

relating to Agriprocessors and Sholom Rubashkin. Vanek Decl., Ex. A at 2-6. The third (¶¶ 26-

32) and fifth (¶¶ 35-40) requests seek information regarding Iowa Turkey Products and a list of

101 individuals. Id. at 5-7. In this context, the Plaintiff’s assertion that he could not craft an

effective appeal is disingenuous.

       In his Reply, the Plaintiff appears to retreat from the argument that he could not

determine which portions of his request were included in what the EOUSA considered request

number 2011-3285. Instead, the Plaintiff suggests that “many of [the third parties] were public

officials and figures acting in their official capacities, while others were interacting with public

                                                18
officials regarding government business. Thus responsive documents would likely not properly

be the subject of any Privacy Act withholding.” Pl.’s Reply at 14. Exhaustion may only be

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

Bush, 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 does not suggest that the EOUSA was

certain to reject his argument that the public officials amongst the third parties listed in the

Plaintiff’s request were not subject to any Privacy Act withholding. Nor does the Plaintiff

suggest he could not identify which of the individuals he included in his own FOIA request were

“public officials” not subject to Privacy Act withholdings. The fact that the Plaintiff would have

liked an explicit list of the paragraphs the EOUSA included within the scope of request number

2011-3285 before drafting his appeal does not excuse his failure to exhaust his administrative

remedies. Nothing in the present record suggests the EOUSA was certain to reject an appeal by

the Plaintiff concerning the agency’s response to request number 2011-3285. Accordingly, the

Plaintiff cannot invoke the futility exception to excuse his failure to exhaust his administrative

remedies regarding request number 2011-3285.

       C.      Request No. 2011USMS18477

       The Marshals Service contends it is entitled to summary judgment because the Plaintiff

failed to exhaust his administrative remedies following the Marshals Service’s final response to

request number 2011USMS18477.            The Plaintiff argues he constructively exhausted his

administrative remedies, and seeks additional time to respond to the Marshals Service’s

substantive arguments. For the reasons set forth below, the Marshals Service issued a final

agency action before the Plaintiff filed suit, thus the Plaintiff was required to actually exhaust his



                                                 19
administrative remedies.8

       The Freedom of Information Act requires an agency, with certain exceptions, to

       determine within 20 days (excepting Saturdays, Sundays, and legal public
       holidays) after the receipt of any such request whether to comply with such
       request and shall immediately notify the person making such request of such
       determination and the reasons therefor, and of the right of such person to appeal
       to the head of the agency any adverse determination[.]

5 U.S.C. § 552(a)(6)(A)(i). The requesting party “shall be deemed to have exhausted his

administrative remedies with respect to such request if the agency fails to comply with the

applicable time limit provisions” of paragraph (6). Id. § 552(a)(6)(C)(i). However, if an agency

subsequently responds to the request before the requesting party files suit, the requestor must

exhaust his administrative remedies before seeking judicial review. Oglesby, 920 F.2d at 64-65.

       On November 2, 2011, the Marshals Service notified the Plaintiff that it had located 166

pages responsive to his request, 98 of which were referred to originating agencies for a

“disclosure determination and direct response to you in accordance with 28 C.F.R. § 16.4 and/or

§ 16.42.” Bordley Decl., Ex. D at 1. The Marshals Service released the remaining 68 pages with

certain redactions pursuant to the FOIA and the Privacy Act, 5 U.S.C. § 552a. Id. The letter

informed the Plaintiff that if he was dissatisfied with Mr. Bordley’s action on his request, he

could appeal to the Office of Information Policy within sixty days. Id. at 2. The Plaintiff argues

that the November 2 letter did not trigger the administrative exhaustion requirement because the

letter “was not a final agency action and the search was not complete.” Pl.’s Cross-Mot. at 4.

       The Plaintiff asserts that the Marshals Service’s November 2 letter was not a final agency

action because the letter indicated the agency “is responding to your request” and did not


       8
          Because the Plaintiff failed to exhaust his administrative remedies, the Court does not
reach the Marshals Service’s arguments regarding the adequacy of the search performed and the
appropriateness of various withholdings. Defs.’ Mot. at 12-18.
                                                20
explicitly state that the search for potentially responsive records was complete. To call to this

argument spurious would be generous. The letter opens by stating that “[t]he United States

Marshals Service is responding to your request for specific records in this agency’s files

pertaining to your client, Sholom Mordechai Rubashkin.” Bordley Decl., Ex. D at 1. This

sentence clearly indicates the purpose of the letter, and cannot reasonably be read to indicate the

Marshals Service’s response is ongoing. The second paragraph of the letter explains that the

Marshals Service “conducted a search of our files . . . and located 166 pages responsive to your

request.” Id. at 1. The letter goes on to explain the disposition of all 166 pages, and indicates the

Plaintiff can appeal the decision. Id. at 2. An affirmative statement that the agency’s search was

complete would be redundant in light of the unambiguous statement by the agency that it

conducted a search for potentially responsive documents, referred certain pages to the

appropriate originating agency, produced the remaining pages subject to redactions pursuant to

specific exemptions articulated in the letter, and notified the Plaintiff could appeal if he was

unsatisfied. Id. at 1-2. The Marshals Service’s November 2, 2011, more than satisfied the

requirement for an agency response sufficient to trigger the exhaustion requirement. Oglesby,

920 F.2d at 65 (“A response is sufficient for purposes of requiring an administrative appeal if it

includes: the agency's determination of whether or not to comply with the request; the reasons

for its decision; and notice of the right of the requester to appeal to the head of the agency if the

initial agency decision is adverse.”).

       The Plaintiff indicates that he thought “work was ongoing at the agency level,” and “[n]ot

wanting to interrupt the search with a court action, he waited for the rest of the documents for

over four months.” Pl.’s Cross-Mot. at 5 (citing Earle v. Holder, 815 F. Supp. 2d 176 (D.D.C.

2011)). Not only was Plaintiff’s belief the “work was ongoing” not supported by the November

                                                 21
2 letter from the Marshals Service, there is nothing in the record to indicate the Plaintiff had any

communication with the Marshals Service that might reasonably lead the Plaintiff to believe that

the agency was still processing his request. The Plaintiff asserts in his motion that he “asked for

updates and patiently waited for more responses,” but provides no document evidencing any

communication with the Marshals Service after November 2, 2011.9 There is no evidence to

suggest the Marshals Service ever indicated to the Plaintiff that a search for potentially

responsive documents was ongoing; to the contrary, the Plaintiff alleges the Marshals Service

“has not communicated with the Plaintiff except through filings to this Court.” Pl.’s Reply at 15.

Thus, there is nothing in the record to indicate that the parties were “seeking a final agency

decision that, if successful, would have negated [the] need to file a lawsuit,” such that the Court

should excuse the Plaintiff’s failure to exhaust his administrative remedies in this case. Earle,

815 F. Supp. 2d at 181.

       Finally, the Plaintiff points to the Marshals Service’s June 2012 production of additional

documents to demonstrate the agency’s search for potentially responsive documents was not

complete as of November 2, 2011. Mr. Bordley explained in his Declaration that “[w]hile

reviewing the records in preparation of this declaration, it was determined that there were four

hundred (400) additional pages which had not been considered in making the initial release.”

Bordley Decl. ¶ 9. The Marshals Service subsequently released 270 pages in whole or in part,

and referred 130 pages to Immigration and Customs Enforcement for a direct response to the

Plaintiff. Id. Nothing in Mr. Bordley’s declaration suggests a search for potentially responsive

       9
         The Declaration of Johanes Maliza documents the exchanges Mr. Maliza had with the
EOUSA on Mr. Rosenberg’s behalf, but does not allege that he ever called or had any contact
with the Marshals Service after November 2, 2011. See Pl.’s Ex. H (Maliza Decl.), Section III.
Nor does Mr. Rosenberg allege that he had any contact with the Marshals Service after receiving
the November 2 letter. See Rosenberg Decl., Section IV.
                                             22
documents was “ongoing” after November 2.            To the contrary, Mr. Bordley’s unrefuted

declaration indicates that the agency re-reviewed records during the course of this litigation. See

also Pl.’s Reply at 15 (“Defendant USMS produced 400 more pages in June 2012, [sic] because

it had been sued and was going to have to explain its actions to this Court.”). Though the June

2012 production is arguably relevant to the adequacy of the agency’s initial search, it does not

call into question the finality of the agency’s November 2 letter. The Marshals Service’s

November 2, 2011, letter to the Plaintiff was an unambiguous final agency action on request

number 2011USMS18477. Although the record is unclear as to when the Marshals Service

received the Plaintiff’s request, even if the agency’s November 2, 2011, response was untimely,

the agency responded before the Plaintiff filed suit, thus triggering the exhaustion requirement.

Oglesby, 920 F.2d at 64-65. The Plaintiff’s failure to seek administrative review of the final

agency action in a timely manner precludes review by this Court.

                                      IV. CONCLUSION

       For the foregoing reasons, the Plaintiff has failed to satisfy the pre-requisites for judicial

review of his claims against the Executive Office for United States Attorneys and the United

States Marshals Service. The Executive Office may impose search fees for request number

2011-3284 and the fees sought are reasonable. Because the Plaintiff failed to pay the fees

imposed, the Court cannot entertain a challenge to the Executive Office’s response (or lack

thereof) to request 2011-3284. Even if the futility exception generally applies to the requirement

that a FOIA plaintiff exhaust his administrative remedies, the Plaintiff failed to demonstrate that

exhaustion of his administrative remedies for request number 2011-3285 have been futile.

Finally, the Marshals Service took final agency action with respect to request number

2011USMS18477 before the Plaintiff filed suit, thus triggering the Plaintiff’s obligation to

                                                23
exhaust his administrative remedies. The Plaintiff’s admitted failure to pursue administrative

appeals concerning requests numbered 2011-3285 and 2011USMS18477 likewise precludes

review in this Court. Accordingly, the EOUSA and Marshals Service’s [27] Motion to Dismiss,

or Alternatively, Motion for Summary Judgment is GRANTED and the Plaintiff’s [36] Cross-

Motion for Summary Judgment is DENIED.             An appropriate Order accompanies this

Memorandum Opinion.

                                                      /s/
                                                  COLLEEN KOLLAR-KOTELLY
                                                  UNITED STATES DISTRICT JUDGE




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