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Contreras & Metelska, P.A. v. Executive Office for Immigration Review

United States District Court, D. Minnesota

September 26, 2019

Contreras & Metelska, P.A., Plaintiff,
v.
Executive Office for Immigration Review and U.S. Department of Justice, Defendants.

          REPORT AND RECOMMENDATION

          HILDY BOWBEER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Contreras & Metelska, P.A. filed suit against the Executive Office for Immigration Review (“EOIR”) and the U.S. Department of Justice (“DOJ”) (collectively, “Defendants”), alleging violations of the Freedom of Information Act (“FOIA”). The Defendants have moved to dismiss the matter under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The motion has been referred to this Court for a report and recommendation under 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the following reasons, this Court recommends that the Defendants' motion to dismiss be granted in part and denied in part.

         I. Background

         A. EOIR's Procedures for Processing FOIA Requests

         The EOIR is an office or “component” within the DOJ, so FOIA requests for EOIR records are governed by the DOJ's regulations. See 8 C.F.R § 1003.0; 28 C.F.R. § 16. In order to obtain access to EOIR's records, a requester must make its request directly to the EOIR's FOIA office. 28 C.F.R. § 16.3(a)(1).

         As a DOJ component, EOIR may charge fees for processing FOIA requests. 28 C.F.R. § 16.10(a). Generally, “educational institutions, noncommercial scientific institutions, and representatives of the news media are not charged any fees, ” but “commercial use” requesters and individual requesters may be. (Schaaf Decl. ¶ 9 [Doc. No. 8].) Requesters can qualify for a waiver or reduction of fees, and the denial of a fee waiver can be appealed. 28 C.F.R. § 16.10(k); 28 C.F.R. § 16.8(a). If a requester does not file a fee waiver, their request constitutes an agreement to pay a fee of up to $25.00. (Schaaf Decl. Ex. B [Doc. No. 8-2].) If EOIR determines that the fees are estimated to be more than $25.00, the FOIA request is paused until the requester commits to pay the fee, or some portion thereof. 28 C.F.R. § 16.10(e)(2).

         An agency has “20 days (excepting Saturdays, Sundays, and legal public holidays)” after receiving the request to determine how to respond and to notify the requester. 5 U.S.C. § 552(a)(6)(A). In circumstances where the request involves “the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request, ” the agency is permitted to take an additional amount of time-up to “ten working days”-to complete the request. § 552(a)(6)(B).

         B. Exhaustion of Administrative Remedies

         A FOIA requester has the right to sue for the release of records, but she must exhaust her administrative remedies, including any administrative appeals, before bringing suit.[1] Brumley v. U.S. Dep't. of Labor, 767 F.2d 444, 445 (8th Cir. 1985). That is because “Congress intended that the administrative route be pursued to its end. It did not mean for the court to take over the agency's decisionmaking role in midstream or to interrupt the agency's appeal process when the agency has already invested time, resources, and expertise into the effort of responding.” Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 64 (D.C. Cir. 1990).

         Generally, failure to exhaust FOIA's administrative remedies is a bar to suit. However, administrative remedies are deemed to be exhausted if the agency fails to respond to the FOIA request within the statutory timeline. 5 U.S.C. § 552(a)(6)(C)(i) (“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.”). This is known as the “constructive exhaustion” provision.

         C. Plaintiff's First FOIA Request

         On January 21, 2019, Plaintiff filed a FOIA request with EOIR seeking records related to the agency's policies, case management, statistical records, and information about the existence of deportation quotas. (Schaaf Decl. ¶ 20.) On February 13, 2019, EOIR sent a letter to Plaintiff acknowledging the request and identifying it as a request involving “unusual circumstances” that would result in increased processing time. (Id. ¶ 21.) February 13, 2019, was 23 calendar days and 17 business days after January 21, 2019. In the letter, EOIR extended its time period to respond by 10 more days, as permitted by 5 U.S.C. § 552(a)(6)(B). (See Schaaf Decl. Ex. B.)

         On February 28, 2019, an EOIR representative notified Plaintiff that the request had been deemed a “commercial use” request whose fees were expected to exceed $25.00 and to inform Plaintiff that the request would be put on hold until a fee agreement was reached. (Id. ¶ 24.) February 28, 2019, was 38 calendar days and 28 business days after January 21, 2019. Plaintiff contested that determination and contended that its request was on behalf of a representative of the news media-a noncommercial requester. (Schaaf Decl. Ex. D [Doc. No. 8-4 at 2].) EOIR responded on March 1, 2019, to inform Plaintiff that it did not meet the definition of a representative of the news media, but would consider its comments to be a request for a waiver or reduction of fees. (Id.) That request was subsequently denied on April 18, 2019. (Schaaf Decl. ¶ 27.)

         D. Petitioner's Second FOIA Request

         Petitioner filed a second request to EOIR's FOIA unit on March 4, 2019, seeking records about EOIR's procedures for processing FOIA requests. (Schaaf Decl. Ex. F [Doc. No. 8-6 at 2].) On March 14, 2019, EOIR sent Plaintiff a letter purporting to acknowledge and respond to the second request. (Id. ¶ 29.) The letter was a generic one, however, notifying Plaintiff that no records were located that were responsive to its request. (Schaaf Decl. Ex. G [Doc. No. 9].) Confusingly, the letter template was apparently meant for a records request pertaining to an individual's file, so the opening sentence reads, “This is a response to your [FOIA] request in which you seek documents regarding the above referenced individual.” (Id.) The request had been linked with a random individual alien's file and A-Number, and thus had been processed as a request for that individual's files-a fact neither party realized at the time. (Schaaf Decl. ¶ 30; Pl.'s Mem. Opp'n Defs.' Mot. Dismiss at 18 [Doc. No. 18].) When none of the records Plaintiff sought were found in that individual's file, EOIR notified Plaintiff that no records had been found. (Id.)

         Plaintiff's attorney mistakenly believed EOIR's response pertained to a different client's FOIA request, so it concluded that EOIR had failed to respond. (See Pl.'s Mem. Opp'n Defs.' Mot. Dismiss at 18.) On April 2, 2019, Plaintiff filed suit to compel EOIR and DOJ to release the records from both FOIA requests. Plaintiff did not learn that the March 14, 2019 letter was a response to its March 4, 2019 request until Defendants filed this Motion to Dismiss with attached exhibits. (Id. at 19.)

         II. Analysis

         A. ...


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