Opinion
Civil Action No. 07-0958 (RWR).
May 12, 2008
MEMORANDUM OPINION
In July and August of 2006, plaintiff requested under the Freedom of Information Act ("FOIA") Federal Bureau of Investigation records "in any way connected to his name." Compl. at 2. By letter of August 9, 2007, the FBI released 795 pages of responsive records and assessed a duplication fee of $69.50. Second Declaration of Peggy L. Bellando [Dkt. No. 24-2] ¶ 12 Ex. H. Having received no payment by October 2007, the FBI moved to dismiss or for summary judgment. Plaintiff does not dispute that as of January 22, 2008, he had not paid the assessed fee. See Second Bellando Decl. ¶ 13.
Arguing that the defendant failed to exhaust his administrative remedies, the motion mistakenly invokes Fed.R.Civ.P. 12(b)(1) as its basis, a rule used for challenging subject matter jurisdiction. The exhaustion requirement under the FOIA is "a jurisprudential doctrine" rather than a jurisdictional prerequisite. Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003). The FBI's supporting memorandum properly invokes Rule 12(b)(6).
The payment or waiver of assessed fees or an administrative appeal from the denial of a fee waiver request is a condition precedent to obtaining judicial review of a FOIA complaint. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65-67 (D.C. Cir. 1990); Trueblood v. U.S. Dep't of Treasury, I.R.S., 943 F. Supp. 64, 68 (D.D.C. 1996) (citing Pollack v. Dep't of Justice, 49 F.3d 115, 120 (4th Cir.), cert. denied, 518 U.S. 1032 (1995)). Because payment is required "[r]egardless of whether the plaintiff `filed' suit before or after receiving a request for payment," Trueblood, 943 F. Supp. at 68, plaintiff will be required to pay the assessed fee before obtaining judicial review of unfavorable action. Smith v. Federal Bureau of Prisons, 517 F. Supp.2d 451, 455 (D.D.C. 2007) (Roberts, J.). Therefore, since matters outside the pleadings have been considered, see Fed.R.Civ.P. 12(d), the FBI is entitled to judgment as a matter of law. A separate Order accompanies this Memorandum Opinion.
Smith, though, mistakenly cited a pre- Hidalgo district court opinion that characterized the failure to pay the assessed fee as a jurisdictional bar. Likewise, Hidalgo has overtaken Trueblood's characterization of the failure to pay the fee as jurisdictional.
The complaint against all other defendants was dismissed by Order of February 27, 2008 [Dkt. No. 25].