     Case: 10-31117     Document: 00511516733         Page: 1     Date Filed: 06/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           June 22, 2011
                                     No. 10-31117
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MCNEIL J. KEMMERLY,

                                                  Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF INTERIOR,

                                                  Defendant-Appellee.


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CV-9794


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM * :
        Plaintiff McNeil Kemmerly sued the United States Department of the
Interior (DOI) under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and
the Administrative Procedure Act (APA), 5 U.S.C. § 701, for declaratory,
injunctive, and other relief for damages allegedly caused by the defendant’s “on-
going failure to process Plaintiff’s FOIA requests in accordance with the laws of
the United States.” Kemmerly appeals from the district court’s order granting
DOI’s motion to dismiss for lack of subject matter jurisdiction for failure to

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                       No. 10-31117

exhaust administrative remedies. For the reasons that follow, we AFFIRM.
       Kemmerly filed two FOIA requests relevant here with the DOI in his own
name on behalf of a commercial client.1 After reviewing the requests, DOI
provided fee estimates of $20,000 and $7,840. Kemmerly refused to pay those
costs, declined to narrow his requests, and did not pursue an administrative
appeal. Instead, he filed suit. Because of the confusing state of the record, the
district court ordered Kemmerly to file a memorandum and affidavit specifically
identifying what records, if any, were requested but withheld for failure to pay
the associated fees. Kemmerly complied, filing an affidavit from his client. After
reviewing the affidavit, DOI construed it as a fifth request because it identified
different and more specific information than what had been identified in the
earlier requests. DOI estimated the cost of processing that request was $250,
which Kemmerly agreed to pay, and fulfilled the request shortly thereafter. The
DOI then filed a motion to dismiss for lack of subject matter jurisdiction, or in
the alternative a motion for summary judgment, because Kemmerly had not
exhausted his administrative remedies with respect to the remaining requests,
and the district court granted the motion.
       We review de novo a district court’s order granting a motion to dismiss for
lack of subject matter jurisdiction, applying the same standards as the district
court. See Spotts v. United States, 613 F.3d 559, 565-66 (5th Cir. 2010). It is
well established that a claimant must exhaust his administrative remedies prior
to requesting judicial relief under FOIA. Voinche v. U.S. Dep’t of Air Force, 983
F.2d 667, 669 (5th Cir. 1993); Hedley v. United States, 594 F.2d 1043, 1044 (5th
Cir. 1979). FOIA expressly conditions the agency’s obligation to process requests



       1
         Kemmerly has filed a total of five requests, but only three are relevant here.
Kemmerly filed suit on the first two requests, but the same district court judge also dismissed
that suit for a failure to exhaust administrative remedies because Kemmerly had not paid or
promised to pay the fees. See Kemmerly v. United States Dep’t of Interior, No. 06-2386, 2006
WL 2990122 (E.D. La. Oct. 17, 2006). Kemmerly did not appeal that judgment and filed this
suit with respect to the remaining requests a year later.

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                                  No. 10-31117

on the requester’s compliance with “published rules stating the time, place, fees
(if any), and procedures to be followed.” 5 U.S.C. § 552(a)(3)(A). DOI regulations
provide that “[t]he bureau will not start processing your request until the fee
issue has been resolved.” 43 C.F.R. § 2.18(d). The regulations also provide:
      If the bureau anticipates that the fees for processing your request
      exceed the amount you have indicated you are willing to pay, the
      bureau will notify you that it needs your assurance of payment of
      fees as high as are anticipated, or an advance payment. If the bureau
      does not hear from you within 20 workdays, it will assume that you
      are no longer interested in this matter and will close the file on your
      request.

43 C.F.R. 2.8(b)(1) (emphasis added). Payment of fees is therefore necessary to
exhaust administrative remedies. Voinche, 983 F.2d at 669; see Pollack v. Dep’t
of Justice, 49 F.3d 115, 119-20 (4th Cir. 1995); Oglesby v. U.S. Dep’t of Army, 920
F.2d 57, 66 (D.C. Cir. 1990) (“Exhaustion does not occur until the required fees
are paid or an appeal is taken from the refusal to waive fees.”); see Trenerry v.
Internal Revenue Serv., No. 95-5150, 1996 WL 88459, at *1 (10th Cir. Mar. 1,
1996) (unpublished).
      Kemmerly admits that he refused to pay or commit to pay the required
fees. Instead, Kemmerly primarily argues that he constructively exhausted his
administrative remedies because the DOI’s responses and estimates were “not
prepared in compliance with law” and were either untimely or arbitrary,
capricious, excessive, and unreasonable. Constructive exhaustion is a narrow,
statutory doctrine that deems a requester to have exhausted its administrative
remedies if the agency does not act within the statutory deadlines. 5 U.S.C.
§ 552(a)(6)(C); Morrow v. Fed. Bureau of Investigation, 2 F.3d 642, 643 n.1 (5th
Cir. 1993). “[W]here a requester has chosen to wait past the ten-day period until
the agency has responded, Congress intended that the administrative route be
pursued to its end. . . . Allowing a FOIA requester to proceed immediately to
court to challenge an agency’s initial response would cut off the agency’s power


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to correct or rethink initial misjudgments or errors.” Taylor v. Appleton, 30 F.3d
1365, 1369 (11th Cir. 1994) (quoting Oglesby, 920 F.2d at 64-65). Here, the DOI
responded by providing Kemmerly with a cost estimate and the opportunity to
revise his requests. Indeed, the DOI revised its cost estimate when Kemmerly
filed an affidavit identifying the documents he requested more specifically.
Kemmerly offers no support for his suggestion that we treat the DOI’s response
as no response at all, and we decline to do so. As such, Kemmerly has not
constructively exhausted his administrative remedies.
      Kemmerly is, of course, free to file another complaint after he exhausts
his administrative remedies. To that extent, the district court should have
dismissed his claims without prejudice. See Taylor v. U.S. Treasury Dep’t, 127
F.3d 470, 478 (5th Cir. 1997). For that reason, we AFFIRM the district court’s
dismissal of Kemmerly’s claims, but REMAND with instructions that the district
court modify its judgment to dismiss these claims without prejudice.




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