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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2003 Decided October 3, 2003
No. 01-5161
PETER J. HIDALGO,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv00709)
Goodwin Liu argued the cause for amicus curiae in sup-
port of the appellant. Walter E. Dellinger, appointed by the
court, was on brief.
Diane M. Sullivan, Assistant United States Attorney, ar-
gued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and R. Craig Lawrence, Assistant
United States Attorney, were on brief.
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
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Pe-
ter Hidalgo, a federal inmate in Coleman, Florida, appeals the
district court’s summary judgment in favor of the govern-
ment.1 Hidalgo brought this action under the Freedom of
Information Act (FOIA), 5 U.S.C. §§ 552 et seq., to challenge
the denial by the Federal Bureau of Investigation (FBI) of
his FOIA request for information regarding a paid govern-
ment informant. The district court held that the requested
information was exempt from disclosure under FOIA Exemp-
tion 6, 5 U.S.C. § 552(b)(6). Because Hidalgo did not appeal
the FBI’s denial to the Office of Information and Privacy
(OIP) of the United States Department of Justice (DOJ) as
required under the DOJ regulations, we conclude Hidalgo
failed to exhaust his administrative remedies and, according-
ly, we vacate the district court’s summary judgment and
remand to the district court to dismiss the complaint for
failure to exhaust.
I.
On December 13, 1999 Hidalgo sent the FBI a request
seeking information regarding Manny Sanchez, who, he as-
serts, operated a marine service facility in Miami from 1989–
93 as a paid informant assisting the FBI to identify and
arrest narcotics smugglers.2 Hidalgo’s FOIA request sought
an accounting of all payments made to Sanchez by any
government agency, a history of all of his convictions and
arrests, a list of all claims of misconduct against him while he
was an informant and any records related to his failure to pay
federal income taxes. On December 29, 1999 Hidalgo submit-
1 Although Hidalgo, appearing pro se before the district court, did
not enter an appearance before this Court, his interests were ably
represented by Amicus Curiae.
2According to Amicus Curiae, Sanchez received somewhere be-
tween $440,000 and $1 million in government payments.
3
ted an ‘‘appeal from the denial of records by the F.B.I.’’ to the
OIP, the DOJ component designated to take FOIA appeals,
see 28 C.F.R. § 0.23a. The appeal asserted that the FBI had
‘‘exceeded the statutory time limits for providing the records
requested.’’ JA 39. In fact, however, the statutory 20–day
limit had not run as of that date. See 5 U.S.C.
§ 552(a)(6)(A)(I).3
On January 7, 2000 the FBI sent Hidalgo a timely response
denying the FOIA request and informing Hidalgo that he
needed either proof of Sanchez’s death or Sanchez’s privacy
waiver to obtain the requested information because ‘‘[s]uch
records, if they exist, are exempt from disclosure pursuant to
Exemptions (b)(6) and/or (b)(7)(C) of the FOIA.’’ JA 41.4
On February 8, 2000 the OIP (apparently unaware of the
FBI’s January 7, 2000 denial) responded to Hidalgo’s Decem-
ber 29, 1999 appeal, stating: ‘‘Although the [FOIA] authorizes
you to treat the failure of the FBI to act on your request
within the specified time limit as a denial thereof, [the OIP]
TTT cannot act until there has been an initial determination by
the [FBI].’’ JA 43.
On April 3, 2000 Hidalgo filed an action in the district court
challenging the FBI’s January 7, 2000 denial of his request.
3The statutory limit was extended from 10 to 20 days in 1996.
See Electronic Freedom of Information Act Amendments of 1996,
Pub. L. No. 104–231, § 8(b), 110 Stat. 3048 (1996).
4FOIA Exemption 6 and Exemption 7(C) exempt from disclo-
sure:
matters that are—
TTT
(6) personnel and medical files and similar files the disclo-
sure of which would constitute a clearly unwarranted invasion
of personal privacy; [and]
(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information TTT (C) could reasonably
be expected to constitute an unwarranted invasion of personal
privacyTTTT
5 U.S.C. § 552(b)(6), (7)(C).
4
See JA 6, ¶¶ 6, 8–9. The district court granted summary
judgment on March 16, 2001, on the ground that FOIA
Exemption 6 precluded disclosure of the information sought.
The court did not reach the government’s alternative ground
that the information is protected under FOIA Exemption 7(C)
and expressly rejected the government’s contention that the
action was barred by Hidalgo’s failure to exhaust his adminis-
trative remedies because he did not appeal the FBI’s denial
to the OIP. We review the district court’s summary judg-
ment de novo. Nation Magazine v. United States Customs
Serv., 71 F.3d 885, 889 (D.C. Cir. 1995) (‘‘We review de novo a
district court’s grant of summary judgment in favor of an
agency which claims to have complied with FOIA.’’). Under
this standard we conclude the district court incorrectly decid-
ed the threshold issue of exhaustion. Hidalgo’s FOIA cause
of action should have been dismissed because he failed to
exhaust his administrative remedies, including appeal of the
FBI’s denial to the OIP.5
II.
‘‘Exhaustion of administrative remedies is generally re-
quired 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.’’ Oglesby v. United States Dep’t of the Army, 920
F.2d 57, 61 (D.C. Cir. 1990) (citing McKart v. United States,
395 U.S. 185, 194 (1969)). It is true, as Amicus Curiae
asserts, that the exhaustion requirement is not jurisdictional
because the FOIA does not unequivocally make it so. See
I.A.M. Nat’l Pension Fund Ben. Plan C. v. Stockton TRI
Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984) (‘‘Only when
Congress states in clear, unequivocal terms that the judiciary
is barred from hearing an action until the administrative
agency has come to a decision TTT has the Supreme Court
held that exhaustion is a jurisdictional prerequisite.’’). None-
theless, as a jurisprudential doctrine, failure to exhaust pre-
5
In light of this disposition, we do not reach the merits of the
FBI’s nondisclosure decision.
5
cludes judicial review if ‘‘the purposes of exhaustion’’ and the
‘‘particular administrative scheme’’ support such a bar.
Oglesby, 920 F.2d at 61. Both factors weigh against Hidalgo
here.
First, the FOIA’s administrative scheme favors treating
failure to exhaust as a bar to judicial review. The FOIA
expressly requires that an agency receiving a request for
information
(i) determine within 20 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of
any such request whether to comply with such request
and 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.
5 U.S.C. § 552(a)(6)(A)(i), (ii). If the denial of the request is
upheld on appeal, the agency must ‘‘notify the person making
such request of the provisions for judicial review of that
determination.’’ Id. § 552(a)(6)(A)(ii). As we have previously
concluded, this statutory scheme ‘‘requires each requestor to
exhaust administrative remedies.’’ Sinito v. United States
Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999) (citing
Oglesby, supra); see Oglesby, 920 F.2d at 61–62 (‘‘Courts
have consistently confirmed that the FOIA requires exhaus-
tion of this appeal process before an individual may seek
relief in the courts.’’) (citing Dettmann v. United States Dep’t
of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)); Taylor v.
Appleton, 30 F.3d 1365, 1367–68 & n.3 (11th Cir. 1994)
(concluding that exhaustion, although not jurisdictional, is
‘‘condition precedent’’ to filing suit). Second, permitting Hi-
dalgo to pursue judicial review without benefit of prior OIP
consideration would undercut ‘‘the purposes of exhaustion,
namely, ‘preventing premature interference with agency pro-
cesses, TTT afford[ing] the parties and the courts the benefit
of [the agency’s] experience and expertise, TTT [or] com-
6
pil[ing] a record which is adequate for judicial review.’ ’’
Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993) (quoting
Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (alteration
original)).
Amicus Curiae asserts that Hidalgo should be deemed to
have exhausted his administrative remedies because his De-
cember 29, 1999 appeal was received by the OIP within 60
days of the FBI’s January 7, 2000 denial, the period for
appeal established by DOJ regulation, see 28 C.F.R. § 16.9(a),
and because the appeal ‘‘clearly satisfied the purposes of
exhaustion,’’ Reply Br. at 4. While Hidalgo’s appeal may
have been timely, in a literal sense, it did not promote the
purposes of the exhaustion doctrine. As Hidalgo pursued it
before the FBI acted on his request, the appeal could not and
did not place the substance of the FBI’s response before the
OIP. Thus, the OIP had no opportunity to consider the very
issues that Hidalgo has raised in court: whether the request-
ed information is covered under FOIA Exemptions 6 and 7(C)
and whether the FBI provided an improper Glomar re-
sponse.6 In denying Hidalgo’s narrow and premature appeal,
the OIP expressly advised him of his options: ‘‘You may
appeal again to this Office when the [FBI] completes its
action on your request if any of the material is denied’’ or ‘‘In
the event that the FBI still has not responded to your request
at the time you receive this letter, you may, if you choose,
treat our letter as a denial of your appeal and bring action in
an appropriate federal court.’’ JA 43. Hidalgo did not heed
the OIP’s directive. To permit him to ignore the OIP’s
directive ‘‘would cut off the agency’s power to correct or
rethink initial misjudgments or errors,’’ Oglesby, 920 F.2d at
64, and frustrate the policies underlying the exhaustion re-
quirement. See Dettmann, 802 F.2d at 1476 n.8 (applying
exhaustion requirement because ‘‘it would be both contrary to
6 A Glomar response ‘‘refus[es] to confirm or to deny the
existence of any records.’’ Oguaju v. United States, 288 F.3d 448,
450 (D.C. Cir. 2002) (citing Phillippi v. CIA, 546 F.2d 1009 (D.C.
Cir. 1976)). The FBI’s denial expressly advised: ‘‘This response
should not be considered an indication of whether or not records
responsive to your request exist in FBI files.’’ JA 41.
7
‘orderly procedure and good administration’ and unfair ‘to
those who are engaged in the tasks of administration’ to
decide an issue which the FBI never had a fair opportunity to
resolve prior to being ushered into litigation’’) (quoting Unit-
ed States v. Tucker Truck Lines, 344 U.S. 33, 36–37 (1952)).
For the foregoing reasons, the summary judgment of the
district court is vacated and the case is remanded with
instructions to the district court to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6) (‘‘failure to
state a claim upon which relief can be granted’’) for failure to
exhaust administrative remedies.
So ordered.