Coleman v. Drug Enforcement Administration , 714 F.3d 816 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN J. COLEMAN, 
Plaintiff-Appellant,
v.
 No. 11-1999
DRUG ENFORCEMENT
ADMINISTRATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(1:10-cv-00927-GBL-IDD)
Argued: March 19, 2013
Decided: May 2, 2013
Before TRAXLER, Chief Judge, and WILKINSON and
NIEMEYER, Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Chief Judge Traxler and
Judge Niemeyer joined.
COUNSEL
ARGUED: Daniel J. Stotter, STOTTER & ASSOCIATES
LLC, Corvallis, Oregon, for Appellant. David Moskowitz,
2 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
OFFICE OF THE UNITED STATES ATTORNEY, Alexan-
dria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Yiris Cornwall, Julie Edelstein, Assis-
tant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
In February 2008, appellant John Coleman filed a Freedom
of Information Act ("FOIA") request with appellee Drug
Enforcement Administration ("DEA") for documents con-
cerning the federal government’s regulation of the drug cari-
soprodol. Despite a statutory mandate requiring agencies to
respond to FOIA requests and appeals within twenty working
days, the DEA took more than sixteen months to respond to
Coleman’s request, eventually denying it for failure to prepay
the assessed processing fee. The Department of Justice’s
Office of Information Policy ("OIP") then took over seven
months to act on Coleman’s appeal of the DEA’s fee determi-
nation, ultimately remanding the request back to the DEA for
reconsideration. Coleman waited almost five more months for
subsequent DEA action. Finally, after nearly two and a half
years of pursuing his request through the administrative pro-
cess to no avail, Coleman filed this action against the DEA
seeking production of the documents he originally requested.
Having exhausted the litigant, the DEA proceeded to argue
that it was Coleman who had failed to pay its fee request for
a preliminary search of documents and to exhaust his admin-
istrative remedies. The district court agreed and granted sum-
mary judgment to the DEA. We reverse. Because the DEA
violated its statutory deadline for responding to Coleman, we
hold that he has exhausted his administrative remedies in this
matter and remand the case for further proceedings consistent
with this opinion.
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 3
I.
Congress passed the Freedom of Information Act, 5 U.S.C.
§ 552, in 1966 "to establish a general philosophy of full
agency disclosure," S. Rep. No. 89-813, at 3 (1965), and "to
assure the availability of Government information necessary
to an informed electorate," H.R. Rep. No. 89-1497, at 12
(1966). The statute provides that, subject to certain enumer-
ated exemptions for classified documents, agency personnel
and medical files, confidential financial information, and the
like, 5 U.S.C. § 552(b)(1)-(9), federal agencies generally must
make their internal records available to the public upon
request, id. § 552(a)(3)(A). As the Supreme Court has recog-
nized, FOIA’s disclosure regime shines a light on government
operations "to check against corruption and to hold the gover-
nors accountable to the governed." NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978).
Upon receipt of a request for records, an agency has twenty
working days to "determine . . . whether to comply with such
request and shall immediately notify the person making such
request of such determination and the reasons therefor." 5
U.S.C. § 552(a)(6)(A)(i). The twenty-day period may be
extended in "unusual circumstances," to wit, if the agency
must (1) "search for and collect the requested records from
field facilities"; (2) "search for, collect, and appropriately
examine a voluminous amount of separate and distinct records
which are demanded in a single request"; or (3) "consult[ ] . . .
with another agency having a substantial interest in the deter-
mination of the request." Id. § 552(a)(6)(B). If an agency
seeks to invoke the "unusual circumstances" extension, it
must send "written notice to the person making such request
setting forth the unusual circumstances for such extension and
the date on which a determination is expected to be dis-
patched." Id. § 552(a)(6)(B)(i). No extension for "unusual cir-
cumstances" is permissible without written notice to the
requester. If an agency seeks to extend the deadline by more
than ten working days, it must "provide the person an oppor-
4 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
tunity to limit the scope of the request so that it may be pro-
cessed" more quickly. Id. § 552(a)(6)(b)(ii). At the time
Coleman filed his request, there was no other relevant mecha-
nism for an agency to toll the twenty-day time limit.
To offset the cost of fulfilling document requests, FOIA
authorizes agencies to collect processing fees. Id. § 552(a)(4).
There are three basic types of fees: "search" fees to cover the
cost of agency personnel time spent locating the requested
documents, "review" fees to cover the cost of personnel time
spent determining whether any requested documents are
exempt from disclosure, and "duplication" fees to cover the
cost of actual duplication as well as any personnel time spent
in the duplication process. 28 C.F.R. § 16.11(b), (c). When
records are "requested for commercial use," an agency may,
in accord with its own regulations, assess search, review, and
duplication fees. 5 U.S.C. § 552(a)(4)(A)(ii)(I). When records
are "not sought for commercial use and the request is made
by an educational or noncommercial scientific institution . . .
or a representative of the news media," the agency may col-
lect only duplication fees, not search or review fees. Id.§ 552(a)(4)(A)(ii)(II). Any other requests for noncommercial
use are subject to both search and duplication fees, but not
review fees. Id. § 552(a)(4)(A)(ii)(III).
Notwithstanding the foregoing fee assessment criteria,
FOIA requests must be processed "without any charge or at
a charge reduced below" the agency’s established fee sched-
ule "if disclosure of the information is in the public interest
because it is likely to contribute significantly to public under-
standing of the operations or activities of the government and
is not primarily in the commercial interest of the requester."
Id. § 552(a)(4)(A)(iii). If no fee waiver applies, an agency
may require prepayment before beginning to process a request
if "the agency has determined that the fee will exceed $250."
Id. § 552(a)(4)(A)(v). If the requester refuses to prepay these
fees, "the request shall not be considered received and further
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 5
work will not be done on it until the required payment is
received." 28 C.F.R. § 16.11(i)(4).
If a requester is not satisfied with an agency’s response to
a request, either because the requester disagrees with the fee
assessment or the agency has refused to provide all requested
documents that the requester believes are subject to disclosure
under FOIA, the requester may file an administrative appeal.
Id. § 552(a)(6)(A)(i). Pursuant to federal regulations, the OIP
handles all appeals from DOJ component organizations,
including the DEA. 28 C.F.R. § 16.9(a). FOIA requesters
have 60 days from the date of the DEA’s adverse decision to
appeal to the OIP. Id. By congressional mandate, the OIP has
twenty working days after receipt of the appeal to "make a
determination" on it. 5 U.S.C. § 552(a)(6)(A)(ii).
If a requester is not satisfied with the outcome of an admin-
istrative appeal, the requester may seek judicial review of any
adverse decision. On complaint by the requester, the district
court "has jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency
records improperly withheld from the complainant." Id.§ 552(a)(4)(B). Before commencing litigation, a requester
must ordinarily exhaust administrative remedies by appealing
an issue through the FOIA administrative process following
an initial adverse determination by the agency. E.g., Wilbur v.
CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam); see
also 28 C.F.R. § 16.9(c). However, a requester "shall be
deemed to have exhausted his administrative remedies" and
may commence litigation immediately if "the agency fails to
comply with the applicable time limit provisions" of the FOIA
statute, 5 U.S.C. § 552(a)(6)(C)(i), so long as the agency has
not cured its violation by responding before the requester files
suit, Pollack v. Dep’t of Justice, 49 F.3d 115, 118 (4th Cir.
1995). This constructive exhaustion provision allows a
requester to break out of the administrative process and pro-
ceed directly to federal court in the face of an unresponsive
agency. If, during litigation, "the Government can show
6 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
exceptional circumstances exist and that the agency is exercis-
ing due diligence in responding to the request, the court may
retain jurisdiction and allow the agency additional time to
complete its review of the records." 5 U.S.C. § 552(a)(6)(C)(i).1
II.
The trek through the above administrative process began on
February 29, 2008, when Coleman, a researcher and author,
sent a FOIA request to the DEA seeking documents "regard-
ing the scheduling of carisoprodol (trade name Soma(r)) pur-
suant to the Controlled Substances Act." J.A. 31. Coleman
offered to "reimburse the federal government all appropriate
costs in connection with the search and reproduction of the
requested records up to the sum of $1,000.00." Id.The DEA received the request several days later on March
4, 2008. Pursuant to FOIA, the agency had twenty working
days to determine whether to comply with the request and
notify Coleman of that determination. See 5 U.S.C.
§ 552(a)(6)(A)(i). The twenty-day period expired on April 1,
2008, and no response or notice of unusual circumstances was
sent to Coleman by that date, placing the DEA in violation of
FOIA’s time-limit provisions.
On July 14, 2009—one year, four months, and ten days
after receiving Coleman’s request—the DEA denied the
request on the grounds that the "promise to pay fees of
1
In December 2007, Congress amended FOIA to provide that if an
agency needs additional information in order to fulfill a request or deter-
mine the requisite processing fee, the agency may contact the requester
and toll the twenty-day response period while awaiting a reply. OPEN
Government Act of 2007, Pub. L. 110-175, § 6(a)(1), 121 Stat. 2524, 2526
(2007) (codified at 5 U.S.C. § 552(a)(6)(A)). However, these provisions
did not take effect until December 31, 2008, id. § 6(a)(2), and are thus not
applicable to the request at issue here, which was filed on February 29,
2008. In any case, the DEA never contacted Coleman within the twenty-
day period to request additional information.
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 7
$1,000.00 is insufficient to cover the cost of the search,
review and duplication." J.A. 33. The DEA stated that, as a
commercial requester, Coleman was responsible for search,
review, and duplication fees and, based on the initial request,
the cost of only the preliminary phase of the search was esti-
mated at $1,780.75. The agency advised that it could not
begin processing the request until Coleman submitted an
advance payment of $1,640.00, which would cover most of
the agency’s estimate for the cost of the search.
Approximately two weeks later, on July 31, 2009, Coleman
appealed the fee assessment to the OIP. In his appeal, he
asserted that he was "not a commercial requester" but rather
"a researcher and an author who, in the past, has published
medical and scientific articles in professional journals and
books for which [he] neither sought nor received remunera-
tion." J.A. 37. He indicated that he was "seeking this informa-
tion as a non-commercial requester" and stated his intent "to
use the requested information as part of [his] research for a
book, journal article, or news report." Id. Coleman further
stated that he was, in fact, "eligible to request a fee waiver"
because (1) he was a "freelance journalist" and (2) disclosure
of the information he sought "is likely to contribute signifi-
cantly to the public’s understanding of the operations of the
government with respect to how it enforces provisions of the
Controlled Substances Act." J.A. 38. Notwithstanding his ini-
tial promise to pay, Coleman formally requested a fee waiver
in light of the DEA’s "excessive delay in unlawfully denying
[him] access to the requested information." J.A. 37.
The OIP received the appeal on August 18, 2009. Pursuant
to FOIA, the OIP had twenty working days to act on it. See
5 U.S.C. § 552(a)(6)(A)(ii). The twenty-day period lapsed on
September 16, 2009. No decision on the appeal was commu-
nicated to Coleman by that date, placing the OIP, like the
DEA, in violation of the statutory time limit.
On March 29, 2010—seven months and eleven days after
receiving Coleman’s appeal—the OIP notified Coleman that
8 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
the DEA’s action on his initial request "was not consistent"
with the DEA’s own regulations concerning fee assessment.
J.A. 40 (citing 28 C.F.R. § 16.11(b)(1) (defining "commercial
use request"); id. § 16.11(e)). Without mandating a particular
final disposition, the OIP remanded the request to the DEA
for "reprocessing, including further consideration of [Cole-
man’s] fee category." J.A. 40. While FOIA itself does not
explicitly contemplate remands following administrative
appeals, DOJ regulations provide that a remanded request
"will be reprocessed in accordance with [the OIP] appeal
decision." 28 C.F.R. § 16.9(b). The OIP’s decision letter did
not indicate that Coleman had to take any additional action to
have his request reprocessed.
On April 22, 2010, Coleman resubmitted his FOIA request
directly to the DEA. He reiterated that he was not a commer-
cial requester and proposed a settlement that "all fees for
search and duplication (‘review’ cost is no longer applicable)"
be waived, arguing in support of the proposal that he was "a
published author of academic and technical materials." J.A.
43. He also reasserted that "disclosure of the information
[sought in the request] is in the public interest because it is
likely to contribute significantly to the public’s understanding
of the operations of the government with respect to how it
enforces provisions of the Controlled Substances Act." J.A.
44.
After waiting approximately four more months for a
response from the DEA, Coleman commenced the instant
lawsuit pro se in the Eastern District of Virginia. He
recounted the history of his FOIA request—going back nearly
two-and-a-half years from the date he filed the complaint—
and sought judicial relief in the form of an order directing the
DEA "to provide immediate and full access to the requested
documents" with all fees waived "in view of excessive and
unlawful delay." J.A. 8-9.
On September 29, 2010, just before filing an answer in this
litigation, the DEA took action on Coleman’s request, which
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 9
was still pending after the OIP remand six months earlier. The
DEA maintained its position that Coleman was a "commercial
requester" because he was affiliated with a for-profit firm that
offered consulting services to pharmaceutical companies
seeking government approval of their new drugs. The agency
also pointed to one of Coleman’s publications in which he
disclosed a "financial relationship with several drug manufac-
turers." J.A. 47. Finding that Coleman had a commercial
interest in the documents he sought, the DEA declined to
grant him either noncommercial fee status or a fee waiver. It
then rejected the FOIA request on the grounds that the search
fee alone would exhaust Coleman’s $1,000.00 commitment
many times over. The day after the DEA sent this letter, it
filed an answer and pointed to the reasoning in the letter as
justification for denying Coleman’s request.
Even as this litigation was pending, the parties continued
their discussions in the administrative process. On November
22, 2010, three months after Coleman filed his complaint, the
DEA sent additional correspondence "in further response to"
his request. J.A. 53. The agency reiterated its position that
Coleman was a commercial requester based on his involve-
ment in pharmaceutical consulting and his past FOIA
requests, at least some of which were deemed commercial
without dispute. And once again, the agency denied the
request at issue here, arguing that the processing fees would
far exceed $1,000.00 regardless of whether Coleman were
deemed a commercial or noncommercial requester. The par-
ties reached an impasse following Coleman’s final adminis-
trative correspondence, dated December 6, 2010, in which he
again explained his belief that he was entitled to both non-
commercial fee status as well as a public interest fee waiver.
The DEA moved for summary judgment shortly thereafter.
The district court granted summary judgment in favor of
the DEA in March 2011, concluding that Coleman both failed
to exhaust his administrative remedies and failed to pay the
fee necessary to begin processing his request. With respect to
10 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
the exhaustion issue, the court found that Coleman "only
recently demanded a waiver of all fees associated with his
FOIA request in his December 6, 2010 letter" and had not yet
appealed the denial of the waiver to the OIP. J.A. 97. The dis-
trict court also found that Coleman "refused to pay" the
DEA’s assessed processing fee before filing suit, providing a
second, independent grounds for summary judgment in favor
of the agency. J.A. 95-96. Coleman unsuccessfully moved the
district court to alter or amend its judgment, and this appeal
followed.
III.
We shall first address whether Coleman exhausted his
administrative remedies prior to filing the instant suit. As a
general matter, the concept of administrative exhaustion
makes good sense. It is far better for the requester and the
agency to reach a mutually satisfactory resolution on their
own without the need for federal judicial intervention. The
requirement that administrative remedies be exhausted saves
both agency and judicial resources and affords the requester
hope that a timely response to the request will be forthcom-
ing. Congress recognized, however, that agencies may be
prone to resist the release of records, either because they
believe in good faith that production of the requested docu-
ments is not required or because they wish to spare them-
selves inconvenience or embarrassment. Without the prospect
of judicial intervention, therefore, the right of citizens to
examine the basic workings of their government would be
severely compromised. This is an especially troubling pros-
pect at a time when the reach of government makes account-
ability important and the sheer size of government can render
its operations all but impenetrable.
Unfortunately this particular suit illustrates the frustration
of congressional hopes and the confirmation of congressional
fears. Given the extended and inexcusable agency delay Cole-
man faced while pursuing his FOIA request, we conclude that
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 11
he constructively exhausted his administrative remedies
before commencing this litigation.
A.
A requester must ordinarily appeal the denial of a FOIA
request within the administrative process before proceeding to
federal court. E.g., Wilbur, 355 F.3d at 676; see also 28
C.F.R. § 16.9(c). However, to prevent agencies from keeping
requesters out of court by simply delaying the administrative
process ad infinitum, Congress provided that a requester will
be deemed to have exhausted his or her administrative reme-
dies "if the agency fails to comply with the applicable time
limit provisions" laid out in FOIA. 5 U.S.C. § 552(a)(6)(C)(i).
Put simply, if an agency does not respond to a request within
twenty working days after receiving it, the requester may typi-
cally commence litigation. Citizens for Responsibility & Eth-
ics in Wash. v. FEC, ___ F.3d ___, 2013 WL 1296289, at *1
(D.C. Cir. 2013). This court has flatly stated that even if a
request "may have been burdensome to the agency or would
have to be delayed because of other requests filed earlier," the
constructive exhaustion provision still applies. Pollack, 49
F.3d at 119. Here, the DEA’s inaction on remand triggered
constructive exhaustion of Coleman’s administrative remedies
and allowed him to proceed directly to court.
It is beyond question that both the DEA and the OIP failed
to comply with the applicable time limits that governed Cole-
man’s initial request and appeal. See 5 U.S.C. § 552(a)(6)(A).
Coleman first submitted his request on February 29, 2008,
and the DEA did not act on it for one year, four months, and
ten days following receipt—exceeding FOIA’s twenty-day
time limit many times over. Coleman appealed the decision
on July 31, 2009, and the OIP did not act on it for seven
months and eleven days following receipt—also exceeding
FOIA’s twenty-day time limit many times over. After each
agency exceeded its statutory deadline, Coleman was free to
seek judicial relief. See, e.g., id. § 552(a)(6)(C)(i); Citizens for
12 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
Responsibility, 2013 WL 1296289, at *1. However, before
this litigation began, the DEA eventually did respond to Cole-
man’s initial request, and the OIP eventually did act on his
appeal, thereby precluding him from relying on constructive
exhaustion with respect to those submissions. See Pollack, 49
F.3d at 118; see also Oglesby v. Dep’t of Army, 920 F.2d 57,
63 (D.C. Cir. 1990).
Notwithstanding these prior responses, when Coleman
commenced the instant litigation, he had been waiting for a
decision from the DEA on remand for nearly five months.
Although FOIA does not explicitly contemplate remands fol-
lowing administrative appeals, it is inconceivable that Con-
gress intended to allow agencies to escape FOIA’s time limits
by sitting on remanded requests indefinitely. In setting a time
limit for agencies to respond to initial requests and establish-
ing constructive exhaustion as a means to enforce that limit,
Congress expressed a clear intent to ensure that FOIA
requests receive prompt attention from the applicable agen-
cies. A request upon remand is still a request, and we there-
fore conclude that it, too, must be acted upon within twenty
working days, pursuant to 5 U.S.C § 552(a)(6)(A)(i).
Whether the clock began ticking on the date the DEA
received the remand from the OIP or a few weeks later when
the agency received Coleman’s resubmitted request, the DEA
triggered a third FOIA violation by once again failing to pro-
vide Coleman with a timely response. The DEA did not cure
this violation because it did not respond before Coleman filed
the operative complaint here. It is true that the DEA
responded to Coleman’s request on remand before the agency
filed its answer but after Coleman filed his complaint. How-
ever, constructive exhaustion applies if an agency has
exceeded its statutory deadline, "unless the agency responds
to the request before suit is filed." Pollack, 49 F.3d at 118(emphasis added). That the agency responded after the suit
began is thus of no moment. We therefore conclude that Cole-
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 13
man has constructively exhausted his administrative remedies
with respect to the claims made in his request upon remand.
B.
The DEA argues, however, that Coleman cannot rely on
constructive exhaustion here because, first, the agency
responded to Coleman’s initial request before he filed this
lawsuit, DEA Br. at 29, and second, even if Coleman con-
structively exhausted the claim that he was a noncommercial
requester, he did not exhaust the fee waiver claim because he
did not request a waiver until after this litigation had already
begun, id. at 30-32. We find both of these objections to be
without merit.
1.
The DEA asserts that once an agency responds to a request,
"constructive exhaustion is inapplicable and actual exhaustion
of administrative remedies is required," regardless of the
agency’s subsequent actions (or lack thereof). Id. at 29. But
that position does not square with the text of the statute.
FOIA’s constructive exhaustion provision applies if an
agency "fails to comply with the applicable time limit provi-
sions" of the statute. 5 U.S.C. § 552(a)(6)(C)(i) (emphasis
added). FOIA imposes two distinct time limits relevant here:
one for responding to requests, id. § 552(a)(6)(A)(i), and one
for responding to appeals, id. § 552(a)(6)(A)(ii). If an agency
timely responds to an initial request but fails to make a timely
determination with respect to the appeal of that request, it has
violated one of the two "applicable time limit provisions," and
constructive exhaustion can apply. Contrary to the DEA’s
position, the mere fact that an agency has responded to the
initial request does not make constructive exhaustion "inappli-
cable" given that subsequent agency inaction following the
initial response may mean that the agency has "fail[ed] to
comply with the applicable time limit provisions."
14 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
Accordingly, an agency is not immune from the twenty-day
limit simply because it has already rejected a request once and
has been forced to reconsider it on remand. The DEA’s failure
to reprocess Coleman’s renewed request on remand in any-
thing like a timely fashion violated the statutory time limit
and thus triggered constructive exhaustion, notwithstanding
the fact that the agency had already responded to the initial
request more than a year earlier. The irony of the DEA’s posi-
tion is especially apparent here, where it contends that its
belated and dilatory initial response gives it a free pass for all
time.
2.
The DEA next contends that, even if Coleman exhausted
his claim that he was a noncommercial requester, he did not
exhaust his fee-waiver claim because he did not request a
waiver until after this litigation had commenced. While the
DEA may be correct that a plaintiff can exhaust administra-
tive remedies with respect to one issue in a FOIA dispute but
not another, see Dettmann v. Dep’t of Justice, 802 F.2d 1472,
1477 (D.C. Cir. 1986), to conclude, as the district court did,
that Coleman exhausted his remedies only with respect to the
commercial/noncommercial distinction and not with respect
to the fee waiver question both chops this case too finely and
overlooks the substance of Coleman’s administrative corre-
spondence.
Despite the DEA’s quibbles about exactly what Coleman
requested from the agency and when he did so, the adminis-
trative claims he raised regarding his eligibility for noncom-
mercial fee status and his eligibility for a fee waiver all
address the same core question, namely how Coleman’s
request should be treated under FOIA’s fee assessment
scheme. The DEA would create a rule under which a FOIA
requester must make distinct arguments addressing every
individual component of an adverse fee determination before
obtaining judicial review of that determination. However,
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 15
holding an ordinary citizen seeking to learn about the basic
workings of a federal agency to such an exacting standard
would impose a burden not authorized by FOIA and would
frustrate the statute’s purpose of "assur[ing] the availability of
Government information necessary to an informed elector-
ate." H.R. Rep. No. 89-1497, at 12. While a FOIA requester
cannot exhaust his administrative remedies with respect to an
issue if "not a word was said" about it, Dettmann, 802 F.2d
at 1476, a requester need not provide the agency with every
nuance and detail of a particular claim before exhaustion can
be found.
Even were we to require a FOIA requester to explicitly
challenge each and every component of an allegedly errone-
ous fee assessment, Coleman would still prevail because he
did, in fact, address both his noncommercial fee status and his
fee waiver eligibility. On July 31, 2009, Coleman sought OIP
review of what he described as (1) his "misidentification . . .
by DEA as a ‘commercial requester’" and (2) "DEA’s errone-
ous fee estimate used, in effect, to deny [his FOIA] request."
J.A. 37. He asked "that fees that otherwise might be required
to fulfill [his] request be waived in full because of the stated
errors and excessive delay in unlawfully denying [him] access
to the requested information." Id. Moreover, Coleman indi-
cated that he was "eligible to request a fee waiver, either by
asserting that disclosure was in the public interest or that [he]
was entitled to a waiver in [his] capacity as a ‘freelance jour-
nalist.’" J.A. 38. These statements were before the DEA on
remand because the agency received Coleman’s OIP appeal
with the OIP’s remand decision.
Out of an abundance of caution, Coleman resubmitted his
request to the DEA following the remand, even though there
was no indication from the OIP that he needed to do so. In his
resubmission, he again indicated that he was a noncommercial
requester and was eligible for a fee waiver by virtue of his
status as "a published author of academic and technical mate-
16 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
rials." J.A. 43. To support his assertions, he included a list of
nine published articles that he previously authored.
To be sure, requests for fee waivers must be made with
"reasonable specificity." Judicial Watch, Inc. v. Rossotti, 326
F.3d 1309, 1312 (D.C. Cir. 2003). The burden to request a fee
waiver is on the requester and the requester must make a
prima facie showing before the agency is obligated to con-
sider the request. See Nat’l Treasury Employees Union v.
Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987); 28 C.F.R.
§ 16.11(k)(5). We find that Coleman met these requirements
here.
Notwithstanding the DEA’s arguments to the contrary,
Coleman made a claim for a fee waiver, albeit imperfectly, to
the agency twice: once indirectly, in his OIP appeal that was
sent to the DEA on remand, and once directly, in his formal
resubmission of his FOIA request. Because the DEA failed to
respond to the remanded request before this litigation began,
Coleman constructively exhausted his administrative reme-
dies with respect to all issues contained in that request,
including his challenge to the assessed fee and the fee waiver
request subsumed within that challenge.
IV.
Having found that Coleman has fully exhausted his admin-
istrative remedies, we now turn to the DEA’s contention that
judicial review is also inappropriate because Coleman failed
to pay the $1,640.00 partial search fee assessed by the agency
in its letter of July 14, 2009. We reject the DEA’s position
because FOIA does not require any prepayment of processing
fees before a requester may proceed to court to dispute the
assessment of those very fees. Although it is true that the
$1,640 search fee was not itself in dispute, it was stated to be
part of the fees ultimately payable by a commercial requester,
which Coleman disputed and sought to challenge.
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 17
A.
FOIA explicitly contemplates judicial review of an agen-
cy’s denial of a fee waiver but makes no mention of any
requirement that a requester prepay an assessed fee before
proceeding to challenge that fee. See 5 U.S.C.
§ 552(a)(4)(A)(vii) ("In any action by a requester regarding
the waiver of fees under this section, the court shall determine
the matter de novo."). Were we to require Coleman to prepay
even a portion of the fee that he now challenges under FOIA,
we would be adding a requirement to the statutory directive
governing review of adverse fee decisions. Such an addition
would undermine the FOIA provision allowing de novo judi-
cial review of an agency’s denial of a fee waiver, id., because
the added hurdle would prevent those who cannot assemble
the resources to prepay an assessed fee (including many of
those for whom Congress actually intended to provide a
waiver in the first place) from obtaining judicial review of an
agency’s erroneous fee assessment. Pollack rightly noted that
the constructive exhaustion provision does not "relieve [a
requester] of his statutory obligation to pay any and all fees
which the agency was authorized to collect," 49 F.3d at 119,
but determining the proper "fees which the agency was autho-
rized to collect" is the whole point of these proceedings. Con-
gress contemplated challenges to fee decisions, yet made no
mention of a prepayment requirement. We therefore decline
to frustrate FOIA’s judicial review provision by imposing
such a requirement.
B.
Contrary to the DEA’s position, our prior decision in Pol-
lack does not compel a different outcome. In Pollack, this
court granted summary judgment in favor of an agency in the
face of a FOIA requester’s categorical refusal to pay any pro-
cessing fees whatsoever. 49 F.3d at 119-20. However, Pollack
does not control the instant case because here Coleman has
never refused to pay any fee under any circumstances. Rather,
18 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
he has mounted a reasoned, substantive challenge to his par-
ticular fee assessment, and he is entitled to judicial review of
that assessment.
The Pollack court rejected the plaintiff’s contention that
"once an action is commenced in a Federal Court, a plaintiff
does not have to deposit any funds to see or obtain any of his
records that he may have requested." Id. at 118. At no time
did the plaintiff there contest the substance of the agency’s fee
assessment or request a bona fide fee waiver under FOIA. Id.
at 120. Rather, he simply asserted that no fee could be
demanded of him after he constructively exhausted his admin-
istrative remedies and brought suit under FOIA. Id. at 119-20.
By contrast, Coleman has substantively contested the DEA’s
fee assessment on multiple occasions and sought a fee waiver
under the applicable FOIA provisions. Coleman does not con-
tend, as did the plaintiff in Pollack, that no fee is owed simply
because the DEA failed to respond to his request in a timely
manner. Rather, Coleman challenges the substance of the
agency’s fee assessment.2
2
Although this court found that the Pollack plaintiff’s position was
unfounded at the time he presented it, intervening amendments to FOIA
have since given that position a basis in the law. In 2007, after finding that
the statute "has not always lived up to [its] ideals," OPEN Government
Act of 2007 § 2, Congress added a provision establishing that an agency
forfeits its right to collect some or all of the fees otherwise payable "if the
agency fails to comply with any time limit" applicable under FOIA, id.
§ 6(b)(1)(A) (codified at 5 U.S.C. § 552(a)(4)(A)(viii)); see also, e.g.,
Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31, 42 (D.D.C. 2011) (hold-
ing that an agency cannot assess FOIA processing fees if it has failed to
comply with the statutory time limit for responding to a request). This new
provision would have applied to Coleman’s request given the delay he
faced, but the amendments are effective only with respect to requests ini-
tially filed on or after December 31, 2008. See OPEN Government Act of
2007 § 6(b)(2). Nonetheless, the new provisions "underscore Congress’s
belief in the importance of the statutory time limit." Bensman, 806 F.
Supp. 2d at 38.
COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 19
C.
We therefore conclude that, in accord with FOIA, Coleman
has exhausted his administrative remedies and properly
brought suit seeking production of the records included in his
initial request. See 5 U.S.C. § 552(a)(4)(B); 28 C.F.R.
§ 16.9(c). Given the DEA’s utter lack of due diligence in
responding to the request, as evidenced by repeated and
excessive delays, the dispute over any required fee is overripe
for judicial resolution. Coleman’s decision to challenge rather
than prepay the assessed fee poses no barrier to a decision on
the merits. He is now entitled to judicial review of the DEA’s
fee assessment. As such, we reverse the district court’s grant
of summary judgment and remand the case for further pro-
ceedings.
On remand, the district court must determine what fee
category—commercial or noncommercial—applies to the
request at issue and whether Coleman is eligible for a waiver
of any fees otherwise due—under either the public interest
provision or some other provision. In order to make this deter-
mination, the district court may need to clarify the scope of
the request. Once the court has reached a conclusion with
respect to the fee and scope issues, it must decide whether to
use its injunctive authority under FOIA to "order the produc-
tion of any agency records improperly withheld from the
complainant." 5 U.S.C. § 552(a)(4)(B); see also id. § 552
(a)(6)(C)(i). We leave the exact sequence of resolving these
matters to the sound discretion of the district court. In the
exercise of that discretion, the court must be mindful that
stringing this case out will defeat any remaining semblance of
congressional intent.
V.
FOIA is grounded in "the fundamental principle of public
access to Government documents." John Doe Agency v. John
Doe Corp., 493 U.S. 146, 151 (1989). The statute provides a
20 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
mechanism for citizens to obtain "official information long
shielded unnecessarily from public view and attempts to
create a judicially enforceable public right to secure such
information from possibly unwilling official hands." EPA v.
Mink, 410 U.S. 73, 80 (1973). Here, a citizen spent over two
years attempting to obtain documents from the DEA when
Congress gave the agency twenty working days to respond to
his request. Before filing suit, Coleman sent a request to the
DEA, appealed the DEA’s fee assessment to the OIP, pre-
vailed on appeal, resubmitted the request, and waited another
four months for the DEA to act following remand. There was
simply no more administrative process left for him to pursue
with any reasonable expectation of agency response.
We do recognize that agencies face their own challenges in
implementing FOIA: the statute and its accompanying regula-
tions are complex; the scope of the exemptions are open to
interpretation and dispute; the volume of requests is fre-
quently heavy; and citizens themselves often submit vague
requests for voluminous materials. None of this, however,
excuses what happened here, namely the agency’s mainte-
nance of complete and utter silence for periods vastly exceed-
ing at every juncture the statute’s requirement of a prompt
response. Nowhere in FOIA did Congress contemplate gov-
ernment sitting on its hands for months at a time and doing
nothing. The time has come for Coleman to receive resolution
of his request of February 29, 2008. The district court’s grant
of summary judgment is therefore reversed and the case is
remanded for further proceedings consistent with this opinion.
On remand, the district court shall give due weight to the
cumulative delays that have transpired in this case and to the
importance of transparency in government.
REVERSED AND REMANDED