Oglesby v. U.S. Dept. of Army, 89-5219

Citation287 U.S.App. D.C. 126,920 F.2d 57
Decision Date04 December 1990
Docket NumberNo. 89-5219,89-5219
Parties, 287 U.S.App.D.C. 126, 59 USLW 2378 Carl OGLESBY, Appellant, v. The UNITED STATES DEPARTMENT OF the ARMY, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

James H. Lesar, Washington, D.C., for appellant.

Patricia D. Carter, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Washington, D.C., Asst. U.S. Attys., Dept. of Justice, were on the brief, for appellees.

Before WALD, Chief Judge, MIKVA and RUTH B. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Carl Oglesby is appealing from the dismissal by the district court of his suit against the Department of the Army ("Army"), the Department of State ("State"), the Federal Bureau of Investigation ("FBI"), the Central Intelligence Agency ("CIA"), the National Archives and Records Administration ("NARA"), and the National Security Agency ("NSA") (collectively "the agencies") seeking information under the Freedom of Information Act ("FOIA"), 5 U.S.C. Sec. 552. The district court found that all six agency defendants had complied with the FOIA in responding to appellant's requests. Oglesby v. Department of the Army, Civ. Action No. 87-3349, Memorandum Opinion ("Mem. op.") at 15, reprinted in Joint Appendix ("J.A.") at 281. We do not reach the merits of appellant's claims against the Army, the CIA, the FBI, the NSA and NARA because we find that appellant failed to exhaust his administrative remedies with respect to each of these agencies. Accordingly, we vacate the district court's judgment to the extent that it reached the merits of appellant's claims against these five agencies, and remand with instructions to dismiss appellant's claims against those agencies based on appellant's failure to exhaust his administrative remedies. We find that appellant constructively exhausted his administrative remedies with respect to his claim against State, but we vacate the district court's order dismissing that claim and remand to the district court to make further findings concerning the adequacy of State's search.

I. BACKGROUND

Appellant Carl Oglesby is an independent freelance writer, professional journalist, and lecturer. His FOIA requests result from an interest in the life of Reinhard Gehlen, a German General during World War II who served as chief of an international Nazi spy ring that operated throughout Eastern Europe and inside the Soviet Union. At the end of the war, Gehlen allegedly negotiated a secret agreement with the United States under which his organization was reconstituted as an espionage network operating in Europe under U.S. command until it could be restored to West Germany as its official foreign intelligence arm.

In 1985, appellant submitted FOIA requests to six agencies concerning General Gehlen. By letters dated August 21 and September 19, 1985, appellant requested, with minor variations, the following information from each of the six agencies:

(1) records on General Gehlen during the period 1944 through 1956;

(2) records on meetings held at Fort Hunt, Virginia, in the summer of 1945 between General Gehlen and U.S. Army General George Strong and Office of Strategic Services ("OSS") officer Allen Dulles;

(3) records on the U.S. Army's "Operation Rusty," carried out in Europe between 1945 and 1948;

(4) records on post-war Nazi German underground organizations such as "Odessa," "Kamaradenwerk," "Bruderschaft," "Werewolves" and "Die Spinne";

(5) records on the OSS's "Operation Sunrise" carried out in 1945; and

(6) records on Gehlen's relationship with William J. Donovan and Allen Dulles of the OSS, records on Operation Rusty and Gehlen collected by the Central Intelligence Group ("CIG"), and records on the Nazi underground organization "La Arana."

See Letter to the CIA Information and Privacy Coordinator from Carl Oglesby (Aug. 21, 1985), reprinted in J.A. at 29 (identical letters were sent to the Army, State, and the NSA); Letter to James K. Hall from Carl Oglesby (Aug. 21, 1985), reprinted in J.A. at 54 (letter to the FBI); Letter to NARA from Carl Oglesby (Sept. 19, 1985), reprinted in J.A. at 72. Appellant also sought a waiver of search and copying fees from each agency pursuant to 5 U.S.C. Sec. 552(a)(4)(A). 1

In response to appellant's requests, the agencies released a total of 384 pages of documents (many with redactions) but refused to disclose other responsive documents, claiming exemptions under 5 U.S.C. Sec. 552(b)(1), (3), and (7). In addition, the Army, the CIA, NARA, and the NSA denied appellant's fee waiver requests, although the NSA subsequently agreed to waive fees.

Appellant challenged the denial of his FOIA requests in the district court on the grounds that the agencies performed inadequate searches, the FOIA exemptions claimed by the agencies were not properly supported, and the agencies improperly denied his fee waiver requests. Appellant did not administratively appeal the denial of his requests to the heads of any of the agencies before filing suit in district court. Despite appellant's failure to exhaust administrative remedies, the district court reached the merits of his claims and granted summary judgment for the agencies on all issues. On appeal, the government again raises failure to exhaust as a challenge to his suit, and Oglesby in turn claims that he constructively exhausted his administrative remedies under 5 U.S.C. Sec. 552(a)(6)(C).

The initial question before us is whether appellant must actually exhaust his administrative remedies before seeking judicial review. Briefly summarized, we find that 5 U.S.C. Sec. 552(a)(6)(C) permits a requester to file a lawsuit when ten days have passed without a reply from the agency indicating that it is responding to his request, but that this option lasts only up to the point that an agency actually responds. Once the agency has responded to the request, the petitioner may no longer exercise his option to go to court immediately. Rather, the requester can seek judicial review only after he has unsuccessfully appealed to the head of the agency as to any denial and thereby exhausted his administrative remedies. Thus, if the agency responds to a FOIA request before the requester files suit, the ten-day constructive exhaustion provision in 5 U.S.C. Sec. 552(a)(6)(C) no longer applies; actual exhaustion of administrative remedies is required. In this case, we find that appellant Oglesby failed to exhaust his administrative remedies with respect to five of the six agencies.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES UNDER FOIA

Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision. See McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969). The exhaustion requirement also allows the top managers of an agency to correct mistakes made at lower levels and thereby obviates unnecessary judicial review. See id. However, absent a statutory provision to the contrary, failure to exhaust is by no means an automatic bar to judicial review; courts usually look at the purposes of exhaustion and the particular administrative scheme in deciding whether they will hear a case or return it to the agency for further processing. See id. at 193; National Labor Relations Board v. Industrial Union of Marine & Shipbuilding Workers, 391 U.S. 418, 426, 88 S.Ct. 1717, 1722-23, 20 L.Ed.2d 706 (1968).

The statutory scheme in the FOIA specifically provides for an administrative appeal process following an agency's denial of a FOIA request. After receiving a FOIA request an agency is required to:

(i) determine within ten days (excepting Saturdays, Sundays, and legal public holidays) ... whether to comply with such request and [the agency] 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; and

(ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection.

5 U.S.C. Sec. 552(a)(6)(A)(i), (ii). Courts have consistently confirmed that the FOIA requires exhaustion of this appeal process before an individual may seek relief in the courts. See Dettmann v. U.S. Department of Justice, 802 F.2d 1472, 1477 (D.C.Cir.1986); Stebbins v. Nationwide Mutual Insurance Co., 757 F.2d 364 (D.C.Cir.1985); Brumley v. U.S. Department of Labor, 767 F.2d 444, 445 (8th Cir.1985); United States v. United States District Court, 717 F.2d 478, 480 (9th Cir.1983); Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir.1979).

Appellant does not argue that exhaustion of remedies is not required. Rather, he contends that he exhausted his administrative remedies constructively, under 5 U.S.C. Sec. 552(a)(6)(C). That section provides:

Any person making a request to any agency for records under paragraphs (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. If 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 to complete its review of the records....

5 U.S.C. Sec. 552(a)(6)(C). The relevant deadlines for agency...

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