                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 15-3873


                    JAMES S. BIEAR,
                                Appellant
                          v.

ATTORNEY GENERAL UNITED STATES OF AMERICA;
   UNITED STATES DEPARTMENT OF JUSTICE


      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
            (District Court No.: 3:14-cv-01488)
       District Judge: Honorable Robert D. Mariani


                 Argued: January 17, 2018

             (Opinion filed: October 1, 2018)

Michael R. Yellin [ARGUED]
Cole Schotz
25 Main Street
Court Plaza North, P.O. Box 800
Hackensack, NJ 07601
      Counsel for Appellant
David J. Freed
 United States Attorney
D. Brian Simpson [ARGUED]
 Assistant United States Attorney
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Counsel for Appellee


    Before: AMBRO, RESTREPO, and FUENTES, Circuit
                       Judges



                 OPINION OF THE COURT


FUENTES, Circuit Judge.
       James S. Biear, a federal prisoner, seeks information
from various federal agencies under the Freedom of
Information Act (“FOIA”).1 The Criminal Division of
Appellee Department of Justice (the “Criminal Division”) and
the Federal Bureau of Investigation are among these agencies.
Biear requested “[a]ny and all documents and electronic media
assembled during any investigation (or review) containing the
name James S. Biear (aka J. Steven Biear and James C. Biear),
DOB: [REDACTED], SSN: [REDACTED].”2

1
  5 U.S.C. § 552.
2
  See, e.g., App. at 85. The Magistrate Judge, in his report and
recommendation, redacted Biear’s date of birth and Social




                               2
        The Criminal Division replied to Biear’s request by
requiring him to certify his identity and to submit additional
information regarding the records. Biear completed the
certification of his identity, but did not further detail his
request. The Criminal Division then denied Biear’s request.
Biear appealed to the Office of Information Policy (“OIP”),
which affirmed the denial. It concluded that Biear failed to
provide sufficient information for the Division to identify the
records sought by Biear.

        The FBI initially denied Biear’s request because all
responsive records were contained in an active investigative
file and were, therefore, exempt from disclosure.3 After Biear
filed his complaint in the District Court, the FBI reopened and
resumed processing Biear’s FOIA request on the ground that
the criminal investigation had concluded. The FBI produced
some documents to Biear in full, some with redactions, and
others were withheld as duplicative or containing exempt
information that could not be reasonably segregated from non-
exempt information.

        The District Court dismissed Biear’s claim regarding
his Criminal Division request for lack of subject matter
jurisdiction, concluding that he failed to exhaust administrative
remedies when he refused to reformulate his request and
therefore “perfect” it. The District Court found that Biear’s
challenge was moot with regard to the FBI request because the
FBI subsequently produced documents. For the following
reasons, we conclude that Biear exhausted his administrative


Security number under Fed. R. Civ. P. 5.2(a). See App. at A-
4. We redact that information here as well.
3
  See 5 U.S.C. § 552(b)(7)(A).




                               3
remedies with respect to his Criminal Division request and that
his challenge to the FBI’s response was not mooted by the
FBI’s subsequent production of documents. Thus, we will
reverse.

I.       Facts

           A.    Biear’s Requests

       Biear is a federal prisoner incarcerated at USP Canaan
in Wayne County, Pennsylvania. Biear mailed a series of
FOIA requests to eight components of the Department of
Justice: the Bureau of Prisons, the Criminal Division, the FBI,
the Executive Office for United States Attorneys, the United
States Marshals Service, the Civil Division of the Department
of Justice, the Tax Division of the Department of Justice, and
INTERPOL Washington.

        Biear’s requests were mailed on various dates in
December 2012 and January 2013 and, with the exclusion of
the request to the Bureau of Prisons, sought: “Any and all
documents and electronic media assembled during any
investigation (or review) containing the name James S. Biear
(aka J. Steven Biear and James C. Biear), DOB [REDACTED],
SSN: [REDACTED].”4

       Only Biear’s requests to the Criminal Division and the
FBI are at issue here. Biear has not claimed before us that the
District Court erred with respect to the other requests.




4
    See, e.g., App. at 85.




                               4
           B.   The Criminal Division Request

       Biear submitted two separate but identical requests to
the Criminal Division. In January 2013, the Criminal Division
sent separate responses to Biear regarding each request. In
both responses, the Criminal Division sent a letter advising
Biear that verification of his identity and additional
information regarding the records sought were required to
process his request. The letter advised Biear that his request
would be administratively closed if the required information
was not provided within thirty days.

       Biear submitted a completed Certification of Identity
form, but submitted no additional information describing the
records he sought. In March 2013, the Criminal Division
notified Biear by letter that although it received his
Certification of Identity form, his request was being
administratively closed because Biear failed to provide a
specific description of the subject of his request. Specifically,
Biear failed to identify the Criminal Division section he
believed would have or maintain responsive records,
precluding a search for such records. In its letter, the Criminal
Division provided: “If you construe this response to be a denial
of your request, you may administratively appeal . . . .”5

       In April 2013, Biear appealed the disposition of both
Criminal Division requests to OIP, which handles
administrative appeals from the Department of Justice’s
determinations under FOIA.6 OIP affirmed the disposition of
Biear’s request in September 2013 on the ground that the


5
    App. at A-90.
6
    See 28 C.F.R. § 16.8(a).




                               5
Criminal Division properly informed Biear that it required
further specification to process his response. It specifically
cited Biear’s failure to indicate the section of Criminal
Division he believed would maintain responsive records.

           C.   The FBI Request

       Biear submitted a request to the FBI in December 2012.
In January 2013, the FBI advised Biear it would require him to
verify his identity and provide additional information
regarding the records sought to process his request. Biear
complied in March 2013. The FBI acknowledged receipt in
April 2013 and advised Biear that it had begun searching for
responsive records.

       Thereafter, Biear sent a letter to OIP to preemptively
appeal the anticipated denial of the FBI request. This letter was
identical to the letters sent appealing his Criminal Division
requests. OIP acknowledged the letter in April 2013.

       In May 2013, the FBI informed Biear by letter that all
responsive records were contained in an active investigative
file and exempt from disclosure under FOIA.7 A month later,
OIP informed Biear via letter that, because the FBI had
reopened and resumed processing his request, his appeal had
been closed as moot. The reopening and processing referenced
in the OIP letter led to the determination that all responsive
records were contained in an active investigative file.

        In July 2013, Biear requested that OIP reopen his appeal
of the denial of the FBI request because the FBI had “remained


7
    See 5 U.S.C. § 552(b)(7)(A).




                                   6
silent.”8 OIP advised Biear in September 2013 that it construed
his letter as a new administrative appeal. OIP further advised
Biear that this appeal had been closed because the FBI had
responded to Biear’s request in May.

       Biear then requested the production of a Vaughn index,
an itemized index specifying the basis for withholding on a
document-by-document basis.9 Based on the record, OIP
never responded to this letter.

        Thereafter, the FBI reopened and resumed processing
Biear’s request in October 2014, after the commencement of
this action in the District Court, on the ground that the criminal
investigative file was no longer active and the applicable
exemption no longer applied. On November 25, 2014, and
December 22, 2014, the FBI produced a total of 1,188 pages of
responsive records; 162 pages were released in full, 670 pages
were released with redactions, 197 pages were withheld as
duplicative of other pages in the production, and 159 pages

8
  App. at A-107. Biear asserts on appeal that he did not receive
the May letter advising him of the FBI’s claimed exemption
from production. Appellants’ Br. at 8. Although this
contention does not impact our analysis, it contextualizes
Biear’s July 23, 2013, statement regarding the FBI’s purported
silence.
9
  See generally Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C.
Cir. 1973). A Vaughn index generally is not required for
withholding under the active investigation exemption. See
N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 218–23
(1978) (“[A] particularized, case-by-case showing is neither
required nor practical” under the active investigation
exemption.).




                                7
were withheld in full because non-exempt information
contained therein could not reasonably be segregated from
exempt information.

                     The FBI’s Production

       The FBI’s production, Bates-labeled in sequence as
“Biear-1” through “Biear-1188,” indicated which pages were
withheld or redacted. It also explained why pages were
withheld and redactions were made: the FBI broke down each
applicable FOIA exemption into subcategories, which were
assigned codes that were then affixed to the withheld or
redacted pages to explain which exemption applied to which
withholding or redaction.

       Where pages were withheld entirely, they were replaced
with a “Deleted Page Information Sheet,” which identified the
reason for withholding by noting the applicable FOIA
exemption relied upon. Where pages contained redactions, the
reason for withholding and the applicable FOIA exemption
relied upon were noted on the face of the released pages.

       Biear has not specifically appealed the FBI’s
withholding of portions of the records responsive to his
request.

       D.     The District Court Proceedings

      Biear filed his complaint pro se in the District Court for
the Middle District of Pennsylvania on July 31, 2014. The
government filed two motions to dismiss or in the alternative




                               8
for summary judgment,10 and Biear cross-moved for summary
judgment. The motions were referred to a Magistrate Judge,
who issued a comprehensive report and recommendation. The
report recommended granting the government’s motion
dismissing the complaint and denying Biear’s cross-motion.

        It also recommended that Biear’s claim against OIP’s
disposition of his Criminal Division request be dismissed
because Biear failed to exhaust his administrative remedies
when he declined to provide additional information to identify
the records he sought. The report recommended that, because
the FBI resumed processing Biear’s request and produced
documents after the commencement of Biear’s action, his
claim regarding the FBI request be dismissed as moot. Biear,
still proceeding pro se, made handwritten objections, to which
the government responded.

       The District Court issued an order adopting the report
and recommendation and overruling Biear’s objections. It
dismissed Biear’s claim regarding his Criminal Division
request for failure to exhaust administrative remedies and his
claim regarding his FBI request as moot. It is not clear whether
the dismissal of Biear’s claim regarding his Criminal Division
request adjudicated the government’s motion to dismiss or its
motion for summary judgment. This appeal followed. Pro
bono counsel was appointed to represent Biear.

10
   One motion was filed on behalf of the FBI and another on
behalf of the seven other entities under the Department of
Justice: at the time the initial motion was filed, the FBI was
reprocessing Biear’s request, leading to a different factual
posture. The motion on behalf of the non-FBI agencies was
filed on October 27, 2014.




                               9
II.    Discussion11

         A.   The Criminal Division Request

        Biear argues that the District Court erred in dismissing
his claim regarding his Criminal Division request because he
in fact did exhaust administrative remedies when he appealed
the closure of his request to OIP. The government contends
that, because Biear did not provide further information to
specify the records sought by his request such as the sections
of the Criminal Division that he believed would have
responsive records, Biear failed to perfect his request and
therefore never made a proper request under FOIA. This, the
government argues, precludes exhaustion. Biear’s request was
sufficiently specific, however, and Biear did not need to further
narrow it to “perfect” it. We therefore conclude that Biear did
exhaust his administrative remedies.


11
   The District Court’s order dismissing all of Biear’s claims is
a final decision, reviewable by the Court of Appeals under 28
U.S.C. § 1291.
We exercise plenary review over a district court’s
determination that a plaintiff exhausted or failed to exhaust his
administrative remedies. See Ellison v. Rogers, 484 F.3d 658,
660 (3d Cir. 2007) (“We have plenary review over the District
Court’s exhaustion determination.”); Holoway v. Horn, 355
F.3d 707, 713 (3d Cir. 2004) (“We conduct a plenary review
of the District Court’s legal conclusions and review its factual
conclusions for clear error.”). We review decisions of
mootness under a plenary standard of review. Int’l Bhd. of
Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir. 1987)
(“Questions of mootness are considered under a plenary
standard of review.”).




                               10
       FOIA permits petitioners to request documents from
government agencies. Agencies, including the Department of
Justice, make and publish regulations governing requests under
FOIA.12 Requests under FOIA are proper if they “reasonably”
describe the records sought and are made “in accordance with
published rules stating the time, place, fees (if any), and
procedures to be followed.”13

       Generally, the law requires exhaustion of administrative
remedies before a plaintiff may seek relief in district court.14
In the context of FOIA, courts in the D.C. Circuit, which
frequently adjudicate issues arising under FOIA, have held that
the “failure to comply with an agency’s FOIA regulations is




12
   See 5 U.S.C. § 552(a)(1) (requiring agencies to make and
publish regulations for requests under FOIA); 28 C.F.R. § 16.3
(Department of Justice regulations governing FOIA requests).
13
    5 U.S.C. § 552(a)(3)(a); see U.S. Dep’t of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749,
754–55 (1989) (describing requirement of request under
FOIA).
14
   See McKart v. United States, 395 U.S. 185, 193 (1969) (“The
doctrine of exhaustion of administrative remedies is well
established in the jurisprudence of administrative law . . . .
The doctrine provides ‘that no one is entitled to judicial relief
for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.’”) (internal
citations omitted); Oglesby v. U.S. Dep’t of Army, 920 F.2d 57,
61 (D.C. Cir. 1990) (applying exhaustion requirement to
FOIA); see also McDonnell v. United States, 4 F.3d 1227, 1240
(3d Cir. 1993) (applying Oglesby in Third Circuit).




                               11
the equivalent of a failure to exhaust,” which subjects a case to
dismissal.15

       Biear’s claim regarding his Criminal Division request
turns on whether he complied with the Department of Justice’s
FOIA regulations. With respect to the identification of records
sought, the Department of Justice’s FOIA regulations state:

              Requesters must describe the
              records sought in sufficient detail
              to enable Department personnel to
              locate them with a reasonable
              amount of effort. To the extent
              possible, requesters should include
              specific information that may
              assist a component in identifying
              the requested records, such as the
              date, title or name, author,
              recipient, subject matter of the
              record,     case    number,     file
              designation,      or      reference
                       16
              number.

       The government contends that Biear’s request was
insufficiently detailed, in part because it failed to suggest
specific sections in which responsive records might be
maintained. The text of the regulation does not require that a
request contain that information. It states only that a request
should contain that information “[t]o the extent possible.” In


15
   Elec. Privacy Info. Ctr. v. Internal Revenue Serv., 261 F.
Supp. 3d 1, 7 (D.D.C. 2017).
16
   28 C.F.R. § 16.3(b).




                               12
contrast, the preceding sentence states that the requester “must
describe the records in sufficient detail.” Biear requested the
records that specifically reference him: he provided his name,
date of birth, and Social Security number to facilitate locating
responsive records.

                     “Containing” Versus “Relating”

        Biear’s request is sufficiently specific to meet the
requirements of the Department of Justice’s regulations and
FOIA because he requested records “containing” his name, not
“relating to” him.

        Two cases illustrate the issue: Dale v. Internal Revenue
Service17 and Shapiro v. Central Intelligence Agency.18 Both
cases agree that “the linchpin inquiry is whether the agency is
able to determine precisely what records are being
requested.”19 The government contends that the relevant
distinction between the two cases is that the plaintiff in Shapiro
requested files from specific databases, whereas in Dale the
plaintiff did not. This is not the relevant distinction between
the two cases.

       In Dale, where the plaintiff requested any and all
documents “that refer or relate in any way” to him, the district
court concluded that the request was not sufficiently precise.20
In Shapiro, where the plaintiff requested “all documents


17
   238 F. Supp. 2d 99 (D.D.C. 2002).
18
   170 F. Supp. 3d 147 (D.D.C. 2016).
19
    Dale, 238 F. Supp. 2d at 104 (internal quotation marks
omitted); see also Shapiro, 170 F. Supp. 3d at 154.
20
   Id. at 104–05.




                               13
mentioning Nelson Mandela,” the district court determined
that the request was sufficiently precise.21 Shapiro explained
the pertinent distinction:

              Regardless of how onerous it
              might be to locate them, there can
              be no dispute about which items
              are being requested—records in
              the CIA’s possession that
              “mention[ ]” Nelson Mandela or
              his three listed aliases . . . . Here,
              the subject of Shapiro’s request is
              the entirety of each document that
              mentions Mandela, even if such
              references are fleeting and
              tangential. So compliance should
              involve virtually no guesswork: A
              record is responsive if and only if
              it contains Mandela’s name (or
              those of his three listed aliases) or
              any descriptor obviously referring
              to him.22

       The district court in Shapiro contrasted this request with
requests that seek records “pertaining” and “relating” to
subjects, finding that “in most of those cases, the reviewing
agency’s task was anything but ministerial” due to the
subjectivity of what it means for a document to relate to a
subject.23 It did not concern itself with the specification of


21
   Shapiro, 170 F. Supp. 3d at 154.
22
   Id. (emphasis and modification in original).
23
   Id.




                               14
databases. We note that an individual making a FOIA request
would almost definitionally be someone outside of the agency
containing the records. It would be counterintuitive in the
extreme to require such an individual to have sufficient
knowledge of an agency’s organizational units to be able to
identify the specific units of an agency that might contain the
records sought.

       In fact, the Shapiro court rejected a very similar
argument to the government’s position. In Shapiro, as here,
the government argued that the FOIA request would not allow
agency personnel “to locate the record with a reasonable
amount of effort.”24 Biear, who requested records containing
his name and identifying information and not pertaining to
him, falls under the reasoning of Shapiro, not Dale. Because
Biear’s request was sufficiently specific, he exhausted his
administrative remedies and the District Court erred by finding
he did not. We will reverse the District Court’s judgment with
respect to Biear’s Criminal Division request.

        B.    The FBI Request

       The District Court, adopting the report and
recommendation, dismissed Biear’s claim regarding his FBI
request as moot because, after the commencement of Biear’s
action, the FBI produced documents to him. Biear, who
contends that the FBI failed to provide sufficient rationale for
its decision to redact and withhold certain pages of the



24
  Id. at 155 (citation omitted); cf. Appellee Supp. Br. at 16–
17 (citing identical “reasonable amount of effort” language in
28 C.F.R. § 16.3(b)).




                              15
production, argues that his claim is not moot where there exist
unresolved issues such as the one he raises.

        Biear is correct. The District Court should have
continued to exercise jurisdiction over Biear’s claim regarding
the sufficiency of the FBI’s response to his request. In Baker
v. U.S. Department of Homeland Security,25 a case relied on by
the government and Biear alike, the district court found that
“‘where an agency has released documents, but other related
issue[s] remain unresolved, courts frequently will not dismiss
the action as moot.’”26 The District Court for the District of
Columbia, citing the Court of Appeals for the D.C. Circuit, has
concluded that a court retains jurisdiction of a case arising
under FOIA “if it is not convinced that the agency has released
all nonexempt material.”27

       Moreover, “[i]n determining the adequacy of a FOIA
disclosure, the burden of sustaining an agency’s determination
rests with the agency.”28 Here, the Magistrate Judge concluded

25
   No. 11 Civ. 588, 2012 WL 245963 (M.D. Pa. Jan. 25, 2012).
26
   Id. at *4 (quoting McKinley v. FDIC, 756 F. Supp. 2d 105,
110 (D.D.C. 2010)).
27
    Northwestern Univ. v. U.S. Dep’t of Agriculture, 403 F.
Supp. 2d 83, 86 (D.D.C. 2005) (citing Perry v. Block, 684 F.2d
121, 125 (D.C. Cir. 1982).
28
   Baker, 2012 WL 245963, at *4; see 5 U.S.C. § 552(a)(1)(B)
(“[T]he court shall determine the matter de novo, and may
examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be
withheld under any of the exemptions set forth in subsection
(b) of this section, and the burden is on the agency to sustain
its action.”).




                              16
that, even if Biear had amended his complaint to challenge the
adequacy of the FBI’s production, the production of documents
obliged Biear to appeal the adequacy of the FBI’s disclosure
administratively before pursuing a judicial remedy. The report
and recommendation relies on McDonnell v. United States,29
which held that production revived the administrative
exhaustion requirement where the agency’s production
predates the lawsuit.30

       Biear filed suit before the FBI made its production,
distinguishing this case from McDonnell. The adequacy of the
FBI’s production only became an issue ripe for consideration
when the action had already commenced in the District Court.
In fact, the government had already moved to dismiss the
claims regarding Biear’s requests to the other agencies when
the FBI began producing documents. By adopting the
Magistrate Judge’s rationale, which misapplied McDonnell to
a case where the lawsuit predated production, the District
Court erred. To apply McDonnell to this case would create a
rule under which a plaintiff may commence an action in which
the courts have subject-matter jurisdiction because he has, at
the time of commencement, exhausted his administrative
remedies, only for the actions of the defendant to effectively
“unexhaust” the plaintiff’s remedies by subsequent action and
deprive the courts of subject-matter jurisdiction in the middle
of a proceeding.

      Because Biear’s lawsuit was underway when the
adequacy of the FBI’s disclosure became ripe for disposition,
the District Court should have continued to exercise

29
     4 F.3d 1227 (3d Cir. 1993).
30
     Id. at 1240




                                   17
jurisdiction over the issue and declined to dismiss it as moot.
We will reverse the District Court’s judgment with respect to
the FBI request and remand for further proceedings.

III.   Conclusion

       For the foregoing reasons, we will reverse the District
Court’s judgment with respect to the Criminal Division and
FBI requests, affirm the judgment with respect to the other
requests, and remand for further proceedings.




                              18
