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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided January 30, 2004
No. 03-5142
ROBERT WILBUR,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
On Motion for Summary Affirmance
(No. 01cr00271–01)
Robert Wilbur pro se.
Roscoe E. Howard, Jr., United States Attorney, and R.
Craig Lawrence and Wyneva Johnson, Assistant United
States Attorneys, were on motion for summary affirmance.
Before: HENDERSON, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed Per Curiam.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Per Curiam: Appellant Robert Wilbur appeals the district
court’s summary judgment in favor of the Central Intelli-
gence Agency (CIA). Wilbur v. CIA, 273 F. Supp. 2d 119
(D.D.C. 2003). Wilbur brought this action under the Free-
dom of Information Act (FOIA), 5 U.S.C. §§ 552 et seq.,
seeking information pertaining to himself. The district court
correctly held that the CIA satisfied its obligation under the
FOIA to search for records responsive to Wilbur’s request.
Accordingly, we affirm the district court’s judgment on that
ground, concluding that the court had subject matter jurisdic-
tion to decide the issue.
I.
Because the district court’s memorandum opinion lays out
the factual background in detail, we summarize only briefly
the facts material to our decision. In February 1994 Wilbur
submitted a FOIA request through counsel, seeking records
regarding him maintained by the CIA, and subsequently
provided the biographical data, privacy waiver and certifica-
tion of identity the CIA requires to process a request. Fol-
lowing a search of the record systems maintained by the
CIA’s Directorate of Operations and Directorate of Adminis-
tration, on June 28, 1994 the CIA issued its initial decision
advising Wilbur that the agency was unable to identify any
information or records filed under his name and informing
him of his appeal rights.
Wilbur did not file an appeal until January 4, 1999. Two
weeks later the CIA notified Wilbur that his request for
appeal of the 1994 determination had been received and
accepted for consideration by the Agency Release Panel. On
September 14, 2000 Wilbur was advised that the agency had
located no responsive documents after examining the initial
searches by the Directorate of Operations and the Directorate
of Administration and conducting a new search of the Di-
rector of Central Intelligence area.
On February 28, 2001, proceeding pro se, Wilbur filed suit
in the district court. The CIA moved to dismiss for lack of
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
3
based on Wilbur’s failure to exhaust administrative remedies
within the time specified by the agency’s FOIA regulations
and failure to comply with the federal statute of limitations
for civil actions. Alternatively, the government moved for
summary judgment, which the district court granted.
At the outset the district court correctly observed that
‘‘exhaustion of administrative remedies is a mandatory pre-
requisite to a lawsuit under FOIA,’’ which ‘‘means that a
requester under FOIA must file an administrative appeal
within the time limit specified in an agency’s FOIA regula-
tions or face dismissal of any lawsuit complaining about the
agency’s response.’’ 273 F. Supp. 2d at 123 (citing Oglesby v.
United States Dep’t of the Army, 920 F.2d 57, 61–64 65 n.9
(D.C. Cir. 1990)). The CIA’s FOIA regulations require that
any administrative appeal be received within 45 days of the
agency’s initial decision. 32 C.F.R. § 1900.42. Thus, the
district court reasoned, Wilbur’s appeal, which was dated
January 4, 1999, more than four years after the initial CIA
determination, ‘‘was late—as if it were never filed at all—and
[Wilbur] can be deemed to have failed to exhaust his adminis-
trative appeal rights.’’ Wilbur, 273 F. Supp. 2d at 123.
Accordingly, the district court concluded it ‘‘ha[d] sufficient
grounds to grant the CIA’s motion to dismiss under Rule
12(b)(1).’’ Id. at 123–24. Nonetheless, the court declined to
dismiss the complaint and proceeded to address the CIA’s
alternative motion for summary judgment ‘‘due to the fact
that the CIA accepted Mr. Wilbur’s very late-filed appeal and
treated it as if it were timely.’’ Id. at 124 (emphasis original).
Based on the agency’s affidavits, the district court determined
the CIA had ‘‘conducted a thorough, reasonable, good-faith
search of the CIA components that were reasonably likely to
maintain records of the type sought by Mr. Wilbur’’ and was
entitled to judgment as a matter of law. Id. at 124–25.
II.
Exhaustion of administrative remedies is generally re-
quired before seeking judicial review ‘‘so that the agency has
an opportunity to exercise its discretion and expertise on the
4
matter and to make a factual record to support its decision.’’
Oglesby, 920 F.2d at 61. Although exhaustion of a FOIA
request ‘‘is not jurisdictional because the FOIA does not
unequivocally make it so,’’ Hidalgo v. FBI, 344 F.3d 1256,
1258 (D.C. Cir. 2003) (citing I.A.M. Nat’l Pension Fund Ben.
Plan C. v. Stockton TRI Indus., 727 F.2d 1204, 1208 (D.C.
Cir. 1984)), still ‘‘as a jurisprudential doctrine, failure to
exhaust precludes judicial review if ‘the purposes of exhaus-
tion’ and the ‘particular administrative scheme’ support such
a bar,’’ Hidalgo, 344 F.3d at 1258–59 (quoting Oglesby, 920
F.2d at 61).
As we held in Hidalgo, the FOIA’s administrative scheme
‘‘favors treating failure to exhaust as a bar to judicial review.’’
See Hidalgo, 344 F.3d at 1259 (construing 5 U.S.C.
§§ 552(a)(6)(A) & citing cases). Moreover, many agencies,
including the CIA, require that an administrative appeal be
filed within a time specified in the agency’s regulations in
order to satisfy the FOIA exhaustion requirement. See
Oglesby, 920 F.2d at 65 n.9; 32 C.F.R. § 1900.42 (CIA
regulation stating: ‘‘Appeals of decisions must be received by
the Coordinator within forty-five (45) days of the date of the
Agency’s initial decision. The Agency may, for good cause and
as a matter of administrative discretion, permit an additional
thirty (30) days for the submission of an appeal.’’).
Wilbur stands on a different footing from Hidalgo with
respect to the second jurisprudential factor. This action
presents no risk of undermining the purposes and policies
underlying the exhaustion requirement, namely, to prevent
premature interference with agency processes, to give the
parties and the courts benefit of the agency’s experience and
expertise and to compile an adequate record for review. See
Hidalgo, 344 F.3d at 1259 (citing Ryan v. Bentsen, 12 F.3d
245, 247 (D.C. Cir. 1993) (citing Weinberger v. Salfi, 422 U.S.
749, 765 (1975))). Wilbur did not bypass the administrative
review process but pursued it to its end; he was simply late
(albeit four years late). Nevertheless, the CIA accepted the
appeal, processed it, reviewed the initial determination and
issued a final decision upholding the agency’s prior determi-
nation. Wilbur then availed himself of the right to seek
5
judicial review as the CIA told him he could. In these
circumstances, the policies underlying the exhaustion require-
ment have been served. See Oglesby, 920 F.2d at 61–65;
Hidalgo, 344 F.3d at 1259–60. Accordingly, we conclude that,
because exhaustion is a prudential consideration rather than a
jurisdictional prerequisite, the district court was not preclud-
ed under these circumstances from deciding the merits of
Wilbur’s FOIA claim notwithstanding his failure to comply
with the CIA’s FOIA appeal deadline.*
Having concluded that judicial review of the FOIA decision
merits is not barred, we affirm the grant of summary judg-
ment substantially for the reasons stated by the district court.
See Wilbur, 273 F. Supp. 2d at 124–25. Contrary to Wilbur’s
assertion on appeal, the fact that responsive documents once
existed does not mean that they remain in the CIA’s custody
today or that the CIA had a duty under FOIA to retain the
records. See Yeager v. Drug Enforcement Admin., 678 F.2d
315, 321 (D.C. Cir. 1982) (‘‘A requester is entitled only to
records that an agency has in fact chosen to create and
retain.’’); Miller v. United States Dep’t of State, 779 F.2d
1378, 1385 (8th Cir. 1985) (‘‘The fact that a document once
existed does not mean that it now exists; nor does the fact
that an agency created a document necessarily imply that the
agency has retained it.’’). Likewise, the agency’s failure to
turn up a particular document, or mere speculation that as
yet uncovered documents might exist, does not undermine the
determination that the agency conducted an adequate search
for the requested records. See Iturralde v. Comptroller of
Currency, 315 F.3d 311, 314 (D.C. Cir. 2003); Safecard
Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). In
sum, the CIA met its burden on summary judgment to
‘‘demonstrate beyond material doubt that its search was
reasonably calculated to uncover all relevant documents.’’
Nation Magazine v. United States Customs Serv., 71 F.3d
* Were the exhaustion requirement jurisdictional, this failure
would bar judicial review of the merits. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 93–94 (1998) (rejecting ‘‘hypothetical
jurisdiction’’ doctrine under which court assumes subject-matter
jurisdiction for sake of deciding merits).
6
885, 890 (D.C. Cir. 1995). Accordingly, the judgment of the
district court is
Affirmed.