                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 CITIZENS FOR RESPONSIBILITY AND
 ETHICS IN WASHINGTON,

    Plaintiff,                                              Civil Action No. 11-951 (CKK)
      v.

 FEDERAL ELECTION COMMISSION,

    Defendant.


                                  MEMORANDUM OPINION
                                    (December 30, 2011)

       Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) filed this action

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to obtain certain records

requested from Defendant, the Federal Election Commission (“FEC”). Presently before the

Court is the FEC’s [4] Motion to Dismiss, or in the Alternative, for Summary Judgment, seeking

to dismiss CREW’s complaint on two grounds: (1) Plaintiff’s claim is moot; and (2) for

Plaintiff’s purported failure to exhaust its administrative remedies. CREW filed an [5]

Opposition, and the FEC filed a [7] Reply. Having analyzed the pleadings, the record before the

Court, and the relevant authorities, Defendant’s motion to dismiss for lack of subject matter

jurisdiction is DENIED, and Defendant’s motion for summary judgment is GRANTED.

                                       I. BACKGROUND

       CREW is a non-profit corporation which describes its mission as “protecting the right of

citizens to be informed about the activities of government officials and [] ensuring the integrity

of government officials.” Compl. ¶ 4. The FEC is an independent agency of the United States

Federal Government charged with administering the Federal Election Campaign Act of 1971.
Def.’s Stmt. ¶ 1.1 On March 7, 2011, CREW submitted a FOIA request to the FEC seeking, in

relevant part, the following records:

       •       All correspondence related to any and all FEC business between Commissioners
               Matthew S. Peterson, Caroline C. Hunter, or Donald F. McGhan II and any
               individual or entity outside of the FEC from the date each commissioner took
               office to the present;

       •       All calendars, agendas, or other recordations of the schedules of Commissioners
               Peterson, Hunter, and McGhan;

       •       All written ex parte communications delivered to an FEC ethics officer or
               Designated Agency Official by Commissioners Peterson, Hunter, and McGhan or
               by someone acting on their behalf; and

       •       All statements setting forth the substance and circumstances of any oral ex parte
               communication prepared by any of these commissioners or by someone acting on
               their behalf and delivered to an ethics official.

Pl.’s Ex. 1 at 1. The request indicated “CREW welcomes the opportunity to discuss with you

whether and to what extent this request can be narrowed or modified to better enable the FEC to

process it within the FOIA’s deadlines.” Id. at 2.

       The day after it received the request, the FEC emailed CREW, acknowledging receipt of

the request, and granting CREW’s application for a fee waiver. Def.’s Stmt. ¶ 4. Though certain

immaterial details of the parties’ communications remain in dispute, the parties do not dispute

that between March 9 and March 18, 2011, the parties agreed that (1) CREW would allow the

FEC to exclude certain documents from its initial search for responsive documents; and (2) the

FEC would produce documents on a rolling basis. See Resp. Stmt. ¶¶ 4-8. On March 29, 2011,



       1
          In most instances the Court shall cite only to Defendant’s Statement of Material Facts
(“Def.’s Stmt.”) unless a statement is contradicted by the Plaintiff, in which case the Court may
cite Plaintiff’s Response to the Defendant’s Statement of Material Facts (“Resp. Stmt.”). The
Court shall also cite directly to evidence in the record, where appropriate.

                                                2
CREW sent the FEC a letter clarifying the scope of CREW’s request. Rappaport Decl. ¶ 8. The

parties continued to correspond regarding the scope of the request through at least April 4, 2011.

See Pl.’s Ex. C at 2. On May 4, 2011, the FEC informed CREW that it had just received the first

set of potentially responsive documents from its searches, was still performing searches, and was

reviewing thousands of potentially relevant documents. Def.’s Stmt. ¶ 10; Rappaport Decl. ¶ 10.

CREW contends the FEC represented it thought it would be able to produce the first set of

responsive documents within two weeks. Resp. Stmt. ¶ 10.

       CREW filed its Complaint on May 23, 2011. Def.’s Stmt. ¶ 11. The FEC produced its

first batch of responsive documents on June 15, 2011. Id. at ¶ 12; Pl.’s Ex. B (06/15/11 Ltr K.

Higginbothom to A. Rappaport). The initial production was accompanied by a letter informing

CREW that

       The FEC is continuing to process your request and has produced with this letter
       an initial round of responsive records. You will continue to receive additional
       responsive records on a rolling basis. Upon the agency’s final production of
       records, you will receive a decision letter that will include information regarding
       your appeal rights. Today’s letter does not constitute a final agency decision, and
       thus is not subject to appeal.

Pl.’s Ex. B at 2. The FEC’s second production on June 21, 2011 contained a similar disclaimer,

indicating the FEC expected to produce additional documents and that the production was not an

appealable agency decision. Pl.’s Ex. C at 2. The FEC completed its production of responsive

documents on June 23, 2011, and enclosed a letter outlining redactions and documents withheld

under various FOIA exemptions. Pl.’s Ex. D at 2-3. The letter further instructed CREW that it

could appeal any adverse determination, that any appeal must be in writing, and that it must

comply with the guidelines set forth in 11 C.F.R. § 4.8. Id. at 3. In total, the FEC produced 835

pages of responsive documents between June 15 and June 23, 2011.

                                                3
                                    II. LEGAL STANDARD

       The FEC styles its motion as a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Rule 56. The FEC’s

argument that CREW’s claim is moot is correctly considered a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1). In determining whether there is subject matter

jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced

in the record, or the complaint supplemented by undisputed facts plus the court's resolution of

disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.

2003) (citations omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253

(D.C. Cir. 2005) (“[T]he district court may consider materials outside the pleadings in deciding

whether to grant a motion to dismiss for lack of jurisdiction.”). “At the motion to dismiss stage,

counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality

to afford all possible inferences favorable to the pleader on allegations of fact.” Settles v. U.S.

Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). However, it remains the Plaintiff's

burden to prove subject matter jurisdiction by a preponderance of the evidence. Am. Farm

Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). “[A] plaintiff['s] factual allegations in the

complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a

12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.

Supp. 2d 163, 170 (D.D.C. 2007) (internal quotation marks omitted).

       In support of its second argument, failure to exhaust administrative remedies, both parties

rely on materials outside the pleadings thus Defendant’s motion will be treated as a motion for

summary judgment. Rule 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside


                                                  4
the pleadings are presented to and not excluded by the court, the motion must be treated as one

for summary judgment under Rule 56.”). “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 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

                                                   5
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). 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).

                                         III. DISCUSSION

       A.      Mootness

       “Article III of the Constitution restricts the federal courts to deciding only ‘actual,

ongoing controversies,’ and a federal court has no ‘power to render advisory opinions [or] . . .

decide questions that cannot affect the rights of litigants in the case before them.’” Nat'l Black

Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (internal citations

omitted) (quoting Honig v. Doe, 484 U.S. 305, 317 (1988) and Preiser v. Newkirk, 422 U.S. 395,

401 (1975)). The case or controversy requirement “means that, throughout the litigation, the

plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant

and likely to be redressed by a favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7

(1998) (internal quotation marks omitted). “[E]ven where litigation poses a live controversy

when filed, . . . [this] court [must] refrain from deciding it if ‘events have so transpired that the

decision will neither presently affect the parties’ rights nor have a more-than-speculative chance

of affecting them in the future.” Nat’l Black Police Ass’n, 108 F.3d at 349 (quoting Clarke v.

United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)).


                                                   6
       In this case, the FEC argues that its production of responsive documents in June 2011

mooted Plaintiff’s claim for relief. Plaintiff argues that the FEC has failed to meet its burden to

show that the search performed was adequate and that the agency’s invocation of various FOIA

exemptions was proper. Plaintiff misunderstands the FEC’s argument.2 The FEC is not moving

to dismiss Plaintiff’s case on the basis of the substance of its response to CREW’s request; rather

the FEC argues its production of any documents in response to the request moot’s CREW’s

complaint, which sought to compel some response to CREW’s request.

       The FEC’s argument has some intellectual appeal, but is ultimately unpersuasive.

CREW filed suit before the FEC had produced (or refused to produce) any documents, which

would seemingly limit Plaintiff to a cause of action under § 552(a)(6)(A)(i) and/or §

552(a)(6)(C) challenging the timeliness of the agency’s response. Although Plaintiff’s

Complaint purports to bring a claim under § 552(a)(3)(A), Defendant implicitly argues that a

claim under this section would not have been ripe at the time Plaintiff filed suit because the

agency had not yet produced or withheld documents such that the Court could evaluate the

adequacy of the agency’s response. It does not appear that courts inside or outside of this

Circuit take such a formalistic approach to complaints filed pursuant to the FOIA. See Edmonds

v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) (upholding attorney’s fee award in FOIA case filed in

order to compel expedited production of documents and resolved on motion for summary

judgment regarding adequacy of the records eventually produced by the FBI). In Voinche v.



       2
          The Court does not fault Plaintiff for this misunderstanding. All of the cases cited in
Defendant’s Motion involved challenges to the substantive response to FOIA requests. It was
not until Defendant’s Reply that the nature of the mootness claim became clear. See Def.’s
Reply at 2-4.

                                                 7
FBI, 999 F.2d 962 (5th Cir. 1993), on which the FEC primarily relies in its Reply, the underlying

complaint challenged both the timeliness of the FBI’s response (as no documents were produced

prior to plaintiff filing suit) and the adequacy of the records produced. Though the Voinche

court eventually concluded that the substantive challenge to the FBI’s response was barred by

plaintiff’s failure to exhaust administrative remedies, the fact that the court reached the

exhaustion issue supports the notion that courts do not routinely construe complaints to only

challenge an agency’s timeliness even if filed before the agency produces any responsive

records. The FEC is correct that to the extent that Plaintiff’s Complaint challenged the

timeliness of their production, it is now moot. However, the Court is not willing to dismiss the

Complaint in its entirety, because the Complaint does assert a substantive challenge to the

agency’s response under § 552(a)(3)(A). See Compl. ¶ 26. Therefore Defendant’s motion to

dismiss for lack of subject matter jurisdiction is denied.

       B.      Exhaustion of Administrative Remedies

       The bulk of the FEC’s motion is dedicated to the argument that this case should be

dismissed because CREW failed to exhaust its administrative remedies before filing suit. As

explained below, the FEC provided an adequate determination in response to CREW’s FOIA

request prior to CREW filing suit, thus CREW was required to exhaust its administrative appeals

within the FEC before challenging the adequacy of the FEC’s response in this Court.

               1.      Exhaustion of Administrative Remedies and Constructive Exhaustion

       Exhaustion of administrative remedies in the context of the FOIA “is not jurisdictional

because the FOIA does not unequivocally make it so.” Hidalgo v. FBI, 344 F.3d 1256, 1258

(D.C. Cir. 2003). Nevertheless, this Circuit has held that failure to exhaust administrative


                                                  8
remedies still “precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular

administrative scheme’ support such a bar.” Id. at 1258-59 (quoting Oglesby v. U.S. Dep’t of

Army, 920 F.2d 57, 61 (D.C. Cir. 1990). In this case, CREW argues that it “constructively

exhausted” its remedies because the FEC failed to respond to its request within the twenty day

window prescribed in the statute. The “constructive exhaustion” provision on which Plaintiff

relies, § 552(a)(6)(C)(i), provides in relevant part:

       Any person making a request to any agency for records under paragraph (1), (2),
       or (3) of this subsection 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 this paragraph.

(Emphasis added); see also Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir.

2003). Section 552(a)(6)(A)(i) provides the relevant time limit, requiring the responding agency

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.

(Emphasis added). When an agency responds to a FOIA request after the twenty-day window

has passed but before the requesting party files suit, the exhaustion requirement is renewed.

Judicial Watch, 326 F.3d at 1310; see also Oglesby, 920 F.2d at 64 (“Once the agency responds

to a FOIA request, the requester must exhaust his administrative remedies before seeking judicial

review.”). Constructive exhaustion is not intended to supplant the agency’s authority under the

FOIA with premature judicial oversight. See Lowe v. DEA, No. 06-1133, 2007 WL 2104309, at

*4 (D.D.C. July 22, 2007) (citing Oglesby, 920 F.2d at 64 n. 8).




                                                  9
               2.      Sufficiency of a “Determination” under the FOIA

       The entirety of Plaintiff’s opposition on this point rests on the argument that a response

from an agency is not a “determination”—for purposes complying with § 552(a)(6)(A)(i) or

triggering the renewed duty to exhaust administrative remedies—unless it is the final substantive

response, including a notice of the requesting party’s right to appeal. Under Plaintiff’s view,

notice that the agency is processing the request and intends to produce responsive documents, as

the FEC provided in this case, is inadequate and the requesting party is entitled to invoke

constructive exhaustion after the twenty day period has expired. However, neither the plain text

of the statute nor the case law in this Circuit supports Plaintiff’s construction.

       First, Plaintiff purports to take a “plain language approach” to § 552(a)(6)(A)(i) by

relying not on the text of the statute, but on the “Guide to the Freedom of Information Act,”

published by the Department of Justice. Pl.’s Opp’n at 18. Without further elaboration, the

Guide concludes “[a]n agency response that merely acknowledges receipt of a request does not

constitute a ‘determination’ under the FOIA in that it neither denies records nor grants the right

to appeal the agency’s determination.” U.S. Dep’t of Justice, Guide to the Freedom of

Information Act, 743 (2009 ed.), available at http://www.justice.gov/oip/foia_guide09.htm.

Besides the curious basis for this conclusion cited in the Guide (a single district court case from

the District of Alaska), the Guide fails to elaborate on what would amount to a “determination”

under the FOIA. The plain text of the actual statute indicates three things are required in the

notice to the requesting party: (1) whether the agency intends to comply with the request; (2) the

reasons for the agency’s compliance or non-compliance; and (3) notice of the right to appeal if

the determination was adverse. Relatedly, § 552(a)(6)(C)(i) requires that “[u]pon any


                                                  10
determination by an agency to comply with a request for records, the records shall be made

promptly available to such person making such request,” would guard against any abuse by

responding agencies. Clearly, the FOIA does not require the responding agency to respond and

produce responsive documents within twenty days in order to require exhaustion of

administrative remedies. Rather, in the event the agency intends to produce documents in

response to the request, the agency need only (1) notify the requesting party within twenty days

that the agency intends to comply; and (2) produce the documents “promptly.” In this case, the

FEC did more than acknowledge receipt of Plaintiff’s request before it filed suit. CREW

concedes that within two days of transmitting the request to the FEC, the FEC agreed to produce

responsive documents on a rolling basis. Rappaport Decl. ¶ 3. The FEC was also reasonably

prompt in producing documents to CREW: the parties did not finalize the scope of CREW’s

request until April 4, 2011 (Rappaport Decl. ¶¶ 8-9; Pl.’s Ex. C at 2); the FEC performed the

relevant searches and began reviewing potentially responsive documents within four weeks

(Rappaport Decl. ¶ 9); and the FEC produced the responsive documents six weeks later (Pl.’s

Exs. C, D). Ten weeks to search, review, and produce documents in response to relatively broad

requests in this context is not unreasonably long as to require a finding of constructive

exhaustion.

       The Court of Appeals confirmed this is the proper interpretation of the FOIA; it held that

an agency’s 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.” Oglesby, 920 F.2d at 65. Several other courts have found


                                                  11
that the plaintiffs failed to constructively exhaust their administrative remedies, even where the

responding agencies provided no indication of its intent to comply prior to the plaintiffs filing

suit, as the FEC did here. In Love v. FBI, 660 F. Supp. 2d 56, the plaintiff sent FOIA requests to

various federal agencies, including the Executive Office of the United States Attorney and the

Drug Enforcement Agency. The EOUSA responded that it would comply with the request. Id.

at 57. The DEA indicated it would “process” the request, but that there would be some delay in

responding. Id. at 58. Neither agency produced any documents before the plaintiff filed suit. Id.

Judge Reggie B. Walton concluded that the responses provided precluded the plaintiff from

asserting constructive exhaustion, and therefore granted summary judgment in favor of the

defendants. Id. at 59-60. The Court finds Judge Walton’s reasoning in Love persuasive.

       Similarly, in Percy Squire Co., LLC v. FCC, the court found that the FCC cured its initial

failure to timely respond to plaintiff’s FOIA request when it agreed to a “phased response for the

tens of thousands of pages of documents” which were responsive to the request, and thus

constructive exhaustion was not applicable. No. 2:09-cv-428, 2009 WL 2448011, at *4-5 (S.D.

Ohio Aug. 7, 2009); see also Cabreja v. U.S. Citizenship and Immigration Serv., No. 08-1992,

2008 WL 4933649, at *1, n.1 (D.D.C. Nov. 19, 2008) (holding plaintiff had not constructively

exhausted administrative remedies where the USCIS “acknowledged the request, assigned a

project number, and informed [plaintiff] that his request had been assigned to the ‘complex’

track”); Bonner v. Soc. Sec. Admin., 574 F. Supp. 2d 136, 137-39 (D.D.C. 2008) (noting “there is

no dispute” that plaintiff failed to exhaust administrative remedies with respect to request to,

among other defendants, the VA, which sent plaintiff letters indicating it had received his request

and it was in the queue for processing). Cf. In Defense of Animals v. NIH, 543 F. Supp. 2d 83,


                                                 12
96-97 (D.D.C. 2008) (finding plaintiff constructively exhausted its remedies where “Defendants

did not indicate their decision to comply or not comply with Plaintiff's entire request until after

Plaintiff filed suit”).

        Plaintiff argues the weight of controlling case law requires the Court to find it

constructively exhausted its administrative remedies. However, Plaintiff does not cite any case

in this Circuit (or any other court for that matter), that supports its reading of the constructive

exhaustion requirement. Rather, Plaintiff attempts to distinguish two cases underlying the case

Defendant cites. Specifically, Plaintiff argues the Court should reject the holding in Petit-Frere

v. U.S. Attorney’s Office for the Southern District of Florida, 664 F. Supp. 2d 69 (D.D.C. 2009).

In Petit-Frere, the plaintiff submitted a FOIA request to the United States Attorney’s Office in

Miami in June 2008. The Executive Office for the United States Attorney received the

forwarded response from the US Attorney’s Office, and responded to plaintiff on August 28,

2008 indicating that it could take approximately nine months to process the request. Id. at 70.

Ten months later, having failed to receive any further response, the plaintiff appealed to the

Department of Justice’s Office of Information and Privacy (“OIP”). The OIP responded that

since there was no adverse determination, there was nothing to review on appeal. Id. The

plaintiff then filed suit. Judge Richard W. Roberts concluded that since the EOUSA submitted a

response in August 2008, plaintiff was required to exhaust his administrative remedies before

filing suit, and dismissed the case. Id. at 71-72.

        Plaintiff’s primary argument is that Judge Roberts improperly relied on two cases in

reaching the decision in Petit-Frere: Spannaus v. U.S. Department of Justice, 824 F.2d 52 (D.C.

Cir. 1987), and Oglesby. To be fair, this Court cannot find a principled way to distinguish the


                                                  13
holding in Petit-Frere from Spannaus, which found that a letter acknowledging receipt of a

FOIA request and indicating the request would be forwarded to FBI Headquarters was not a

“determination” under § 552(a)(6)(A)(i). The response from the EOUSA in Petit-Frere did little

more as it simply acknowledged the request and indicated the possible time frames for

processing. See Petit-Frere v. U.S. Atty’s Office for the So. Dist. of Fla, No. 09-1732, Compl.

Ex. C. However, the Court of Appeals in Oglesby indicated it was still an open question as to

whether a response indicating the agency was “processing” a claim was a sufficient

determination to satisfy the time limits provided in FOIA. See 920 F.2d at 69. The Oglesby

court did not resolve the issue because in the case before it, the FBI responded further with an

final adverse decision before the plaintiff filed suit, thus renewing plaintiff’s obligation to

exhaust administrative remedies. Ultimately, the adequacy of a response indicating a request is

being “processed” is irrelevant to this case, as the FEC indicated it would in fact produce records

in response to CREW’s request. Thus the FEC provided the response that the Oglesby court

noted is a sufficient “determination” under the FOIA to trigger the administrative exhaustion

requirement, and the Court need not rely on Petit-Frere to reach this conclusion.

               3.      Open America Stays and Exhaustion

       Plaintiff next argues that Congress intended to allow direct access to the courts in the

face of agency delay. As noted above, § 552(a)(6)(C)(i) provides that if an agency “fails to

comply with the applicable time limit[s],” the requesting party is deemed to have constructively

exhausted its administrative remedies. This section continues, stating “[i]f the Government can

show exceptional circumstances exist and that the agency is exercising due diligence in

responding to the request, the court may retain jurisdiction and allow the agency additional time


                                                  14
to complete its review of the records.” The Court of Appeals in Open America v. Watergate

Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) interpreted the phrase “exceptional

circumstances” to include agency backlog in processing FOIA requests, so long as the agency

shows it is “exercising due diligence” in processing the backlogged requests. Id. at 616.

       Curiously, Plaintiff never cites § 552(a)(6)(C)(i) in support of this argument, and seems

to believe that the stays are a creation of the Judiciary. See Pl.’s Opp’n at 18. In any case,

Plaintiff contends that requiring exhaustion in cases such as this “would deprive this judicially

sanctioned approach of any utility.” Id. This is incorrect. Under the Court’s interpretation of

the § 552(a)(6)(A), requesting parties still have immediate access to the courts in the event that

the agency fails to (1) respond at all; or (2) merely indicates it is “processing” the request, but

does not indicate whether the agency will comply.3 The Court is not unsympathetic to the

Plaintiff’s concern that this interpretation could theoretically lead to the situation where, as in

Petit-Frere, the agency failed to produce documents for nearly a year, yet the requesting party

was still unable to seek judicial intervention. The Court notes that adherence to the language of

the third sentence of § 552(a)(6)(C)(i), which requires “prompt” production of responsive

documents if an agency intends to comply with the request, will guard against any abuse by

responding agencies.

       Furthermore, the rationale underlying the exhaustion requirement itself supports

requiring CREW to exhaust its remedies in this case.




       3
         Under Petit-Frere, the “processing” response would require administrative exhaustion,
but the Court does not go so far in this case because the FEC’s response indicated it would
comply with the request, not that the request was merely being “processed.”

                                                  15
       Exhaustion is generally required as a matter of preventing premature interference
       with agency processes, so that the agency may function efficiently and so that it
       may have an opportunity to correct its own errors, to afford the parties and the
       courts the benefit of its experience and expertise, and to compile a record which is
       adequate for judicial review.

Weinberger v. Salfi, 422 U.S. 749, 765 (1975). Exhaustion also plays an important role in

ensuring consistency in responding to FOIA requests. As the Court of Appeals explained:

       Allowing a FOIA requester to proceed immediately to court to challenge an
       agency's initial response would cut off the agency’s power to correct or rethink
       initial misjudgments or errors. The extra several weeks consumed in processing
       an administrative appeal to completion must surely have been thought a tolerable
       price to ask from a requester who has already chosen to wait for a response from
       the agency. If there is to be any uniformity in FOIA interpretations within a given
       agency, and if agencies are to have an opportunity to revise their responses in
       light of intervening responses to the same FOIA request by other agencies, such
       uniformity can best be afforded through the administrative appeal process.

Oglesby, 920 F.2d at 133-34. Thus, a finding of constructive exhaustion is not appropriate

where it would be “contrary to orderly procedure and good administration and unfair to those

who are engaged in the tasks of administration to decide an issue which [an agency] never had a

fair opportunity to resolve prior to being ushered into litigation.” Lowe, 2007 WL 2104309, at

*4 (quoting Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476 (D.C. Cir. 1986)) (internal

quotation marks omitted). Here, the FEC has not had the opportunity to address any of the

objections CREW lodges to scope of the production, adequacy of the searches, or claimed

exemptions and withheld documents. Providing the FEC the opportunity to review CREW’s

objections through the administrative appeals process would among other things allow the

agency time to correct any errors alleged by CREW, and create a full record for the Court to

review should CREW seek additional review of the FEC’s decision. Requiring exhaustion in

this case will only further the ends of justice.


                                                   16
       In sum, both the text of the relevant provisions and case law show the FEC’s response

prior to May 23, 2011, was sufficient to require CREW to exhaust its administrative remedies

within the FEC before filing suit. None of Plaintiff’s arguments to the contrary are persuasive.

The FEC provided notice within two days that it intended to comply with CREW’s request, and

worked diligently with CREW to clarify and narrow the scope of the requests, then to perform

searches, to review, and ultimately to produce responsive documents. This was a sufficient

response as required by the FOIA, and thus CREW cannot claim to have constructively

exhausted its administrative remedies.

                                       IV. CONCLUSION

       For the reasons stated above, Defendant’s motion to dismiss for lack of subject matter

jurisdiction is DENIED. Although Plaintiff’s claims regarding the timeliness of the FEC’s

response to its FOIA request were rendered moot by the agency’s response, the Court retains

subject matter jurisdiction over the issue of the adequacy of the FEC’s response. Defendant’s

motion for summary judgment for failure to exhaust administrative remedies is GRANTED.

Defendant provided an adequate “determination” prior to Plaintiff filing suit, and thus Plaintiff is

required to exhaust its administrative remedies within the FEC before challenging the adequacy

of the FEC’s response in this Court. Therefore the Court shall dismiss the case in its entirety.

       An appropriate Order accompanies this Memorandum Opinion.



                                                                   /s/
                                                             COLLEEN KOLLAR-KOTELLY
                                                             United States District Judge




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