On March 16, 2011 U.S. District Judge James C. Mahan dismissed a FOIA lawsuit for numerous FBI investigative records pertaining to the terrorist attacks of September 11, 2001. Case No. 2:09-cv-2199-JCM-PAL, Aidan Monaghan v. Department of Justice et al, sought the release of the following F.B.I. records. An appeal to the U.S. 9th Circuit Court of Appeals is likely.

(1) Records describing aircraft wreckage collection for American Airlines flight 77 and United Airlines flight 93 destroyed on September 11, 2001 in Arlington, VA and Shanksville, PA.; (2) Records describing the make and model of Flight Management Computers (FMCs) or Flight Management System (FMS) and Multi-Mode Receivers (MMR) contained by American Airlines flight 11, United Airlines flight 175, American Airlines flight 77 and United Airlines flight 93.; (3) Records containing inventory control serial numbers for Flight Data Recorders and Cockpit Voice Recorders for American Airlines flight 77 and United Airlines flight 93.; (4) Records regarding 'ACARS' (Aircraft Communications Addressing and Reporting System) communications generated by and transmitted to the four aircraft in question on September 11, 2001.; (5) Records regarding any FBI opinions disseminated by USA Today, describing explosive devices as a suspected cause of the destructions of the World Trade Center buildings in New York city, NY on September 11, 2001.; (6) Records regarding the FBI's collection and/or identification of human remains aboard American Airlines flight 77 recovered from the Pentagon building in Arlington, VA and United Airlines flight 93 recovered from Shanksville, PA following the terrorist attacks of September 11, 2001.; (7) An audio copy of the Cockpit Voice Recorder recording obtained from the Cockpit Voice Recorder recovered from the crash scene of United Airlines flight 93 in Shanksville, PA.; (8) Records pertaining to or establishing in-flight phone calls reportedly placed on September 11, 2001, by passengers on-board American Airlines flight 11, United Airlines flight 175, American Airlines flight 77 and United Airlines flight 93, all hijacked during the terrorist attacks of September 11, 2001.

AIDAN MONAGHAN,
Plaintiff,

v.

DEPARTMENT OF JUSTICE, et al.,
Defendants.

2:09-CV-2199 JCM (PAL)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

ORDER

Presently before the court is defendants the Department of Justice, et al’s motion to dismiss or, in the alternative, for summary judgment. (Doc. #31). Plaintiff Aidan Monaghan filed an opposition. (Doc. #38). Defendants filed a reply. (Doc. #44). The case arises out of plaintiff’s request for certain categories of records related to the terrorist attacks of September 11, 2001.

In his complaint, plaintiff asked this court for a waiver of the fees usually associated with the searching and copying of such records under the Freedom of Information Act, 5 U.S.C. § 552. The parties agreed to bifurcate the issues in the case; the court was to first rule on the issue of waiver and then, if necessary, address the substantive issues. On June 17, 2010, the court denied plaintiff’s motion for summary judgment on the issue of waiving the fee. (Doc. #27). After the court’s ruling, the plaintiff still did not make the necessary payments, and as of January 2010, he owed $864 in search fees. In the present motion to dismiss or for summary judgment (doc. #31), the defendants assert that due to plaintiff’s failure to pay the required fees and to obtain a fee waiver, he has not exhausted the administrative remedies and is not entitled to any requested records. Plaintiff contends that he has “constructively” exhausted his claims because the “agency fail[ed] to comply with the applicable time limitations” that require federal agencies to make final determinations on requests within twenty working days, absent “unusual circumstances.” 5 U.S.C. § 552(a)(6)(A)(I).

Motion to Dismiss/Freedom of Information Act

Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss a case for lack of subject matter jurisdiction. Defendants assert that this case should be dismissed because this court lacks jurisdiction under the regulations of the Freedom of Information Act. Unless a federal agency has “(1) improperly (2) withheld (3) agency records,” “a district court lacks jurisdiction to devise remedies to force an agency to comply with the [Freedom of Information Act’s] requirements.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)(quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)). The Freedom of Information Act requires a requester to pay search and duplication fees “regardless of whether the plaintiff filed suit before or after receiving a request for payment...” Kissinger, 445 U.S. 136; 28 C.F.R. § 16.11 (Department of Justice’s regulation on fees); Trueblood v. U.S. Dep’t of Treas., 943 F.Supp. 64, 68 (D.D.C. 1996). Further, if the requester fails to satisfy the requirements of the act, including those pertaining to fees, then he has failed to exhaust his remedies and cannot obtain judicial review. See Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986). Here, defendants correctly assert that plaintiff was not given a waiver of fees (doc. #27) and that he has failed to pay the required fees that would entitle him to the records requested. In plaintiff’s opposition (doc. #38), he asserts that defendants failed to comply with the local rules in their motion , and that he did not 1 have to pay the fee because he “constructively” exhausted his claims due to defendants’ failure to comply with § 522(a)(4)(A)(viii). Under section 522, Plaintiff asserts that defendants failed to comply with Local Rules 56-2 and 56-1. However, neither of these claims have merit, as plaintiff erroneously states what these rules require and therefore fails to show how defendants did not comply with these rules. Any agency shall not assess search fees...under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and (C), respectively) apply to the processing of the request. 5 U.S.C. § 552(a)(4)(A)(viii) (emphasis added). Plaintiff asserts that since defendants did not reply to his request within 20 days as required, he is not required to pay the search fees. Defendants assert, and this court agrees, that not only has plaintiff waived this argument by not raising it anywhere in his complaint (see Dettman, 802 F.2d at 1476 (rejecting a new objection that had not been previously raised for “failure to exhaust administrative remedies”), but his request for records from “the largest and most complex investigatory files ever created by” the FBI (doc. #31-1) would certainly qualify for “unusual circumstances.” As stated above, plaintiff’s failure to pay the required fees results in a failure to exhaust his administrative remedies. Therefore, as the agency has not “improperly withheld agency records,” the court lacks jurisdiction and the case is dismissed. Tax Analysts, 492 U.S. 136, 142; Kissinger, 445 U.S. 136, 150; Dettmann, 802 F.2d 1472, 1476-77.

Accordingly, IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendants the Department of Justice, et al’s motion to dismiss or, in the alternative, for summary judgment (doc. #31) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that the above captioned case be, and the same hereby is, DISMISSED.

DATED March 16, 2011.

UNITED STATES DISTRICT JUDGE
James C. Mahan
U.S. District Judge

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND FOR RECONSIDERATION OF FOIA FEE WAIVER RULING

Pursuant to Federal Rule of Civil Procedure 56(b)(1), Plaintiff Aidan Monaghan (“Plaintiff”), appearing pro se, hereby respectfully moves for Summary Judgment in the above captioned action, on the grounds that there are no genuine issues of material fact that prevent a judgment for Plaintiff in this matter. In addition, Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff respectfully moves for the Court’s reconsideration and relief from the Court’s June 17, 2010 Order (Court Doc. 27) granting partial summary judgment to Defendants as to the FOIA fee waiver issues presented in this action.

This Motion is supported by the accompanying Memorandum of Points and Authorities, Statement of Undisputed Facts, Declaration of Aidan Monaghan and the exhibits which are referenced therein, and by the pleadings and all other court filings submitted by the parties in this action. Plaintiff brings this action to redress violations of the Freedom of Information Act (hereinafter "FOIA"), 5 U.S.C. § 552, by Defendants United States Department of Justice (“DOJ”) and United States Federal Bureau of Investigation (“FBI”) in failing to provide any responsive documents or records to Plaintiff’s August 2009 FOIA request to the FBI, seeking eight categories of records related to the FBI’s investigation of the events of September 11, 2001. Defendant FBI failed to ever respond to Plaintiff’s August 2009 FOIA request prior to the filing of this court action, and has to date still provided Plaintiff with no responsive records to this FOIA request, nor any lawful basis to support the agency’s withholdings of all records to this records request. Defendant Department of Justice similarly failed to ever respond to Plaintiff’s administrative appeal regarding this FOIA request, and has also failed and refused to provide Plaintiff with any lawful basis to support the withholding of all responsive records. As a result of Defendants failure to respond to Plaintiff’s FOIA request and administrative appeal, Plaintiff was required to file the present action However, as noted above, Plaintiff has still not received any indication that Defendants are prepared to provide all non-exempt responsive records to his August 2009 FOIA request to the FBI.

II. STANDARD OF REVIEW

Summary judgment should be granted if there is “no genuine issue as to any material fact” and the “moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56©. The moving party has the burden of demonstrating the absence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). When reviewing an agency’s denial of a plaintiff’s FOIA request, “the court shall determine the matter de novo.” 5 U.S.C. § 552(a)(4)(B); see Founding Church of Scientology of Washington, D.C., Inc., v. National Security Agency, 610 F.2d 824, 830 (D.C. Cir. 1979). Under FOIA, the court reviews de novo the agency’s actions in response to a FOIA request, and the federal agency expressly bears the burden to sustain its actions, and to show that any records withheld are properly covered by a specific FOIA exemption. 5 U.S.C. §552(a)(4)(B).

III. LEGAL BACKGROUND – THE FREEDOM OF INFORMATION ACT

The Supreme Court has observed that FOIA was designed to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976). “[D]isclosure, not secrecy, is the dominant objective” of FOIA. Id.; see also Dept. of the Interior v. Klamath Water Users Protective Assn., 532 U.S. 1, 8 (2001). The primary goal of FOIA “is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (citations omitted); see also Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (quoting Robbins Tire & Rubber); United States Dept. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (fundamental purpose of FOIA is to assist citizens in discovering “what their government is up to”). Accordingly, “virtually every document generated by an agency is available in one form or another, unless it falls within one of the Act’s nine exemptions.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975) (“Sears”); see 5 U.S.C. § 552(d). FOIA requires, inter alia, that federal agencies must promptly provide copies of agency records to those persons who make a request for records that reasonably describes the nature of the records sought, and which conforms with agency regulations and procedures in requesting such records. 5 U.S.C. § 552(a)(3)(A). In responding to a FOIA request, an agency must undertake a search for agency records that is “reasonable designed to locate all records responsive to the FOIA request.” See e.g. Church of Scientology Int'l v. U.S. Dept. of Justice, 30 F.3d 224, 230 (1st Cir. '94) (adequacy of FOIA search is whether agency's search was "reasonably calculated to discover the requested records"); see also Maynard v. C.I.A., 986 F.2d 547, 559 - 560 (1st Cir. ‘93); Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 28 (D.C. Cir. ‘98); Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. ‘90); Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. ‘99); Judicial Watch Inc. v. U.S. Department of Commerce, 34 F.Supp.2d 28, 44-45 (D.D.C. ‘98). Procedurally, FOIA requires federal agencies to make a final determination on FOIA requests that it receives within twenty working days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such request, unless the agency provides notice to the requester of “unusual circumstances” meriting additional time for responding to a FOIA request. 5 U.S.C. § 552(a)(6)(A)(I). FOIA also requires federal agencies to make a final determination on FOIA administrative appeals that it receives within twenty working days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal, unless the agency provides notice to the requester of “unusual circumstances” meriting additional time for responding to a FOIA request. 5 U.S.C. § 552(a)(6)(A)(ii). FOIA expressly provides that a person shall be deemed to have exhausted their administrative remedies if the agency fails to comply with the applicable time limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See 5 U.S.C. § 552(a)(6)©. FOIA provides that any person who has not been provided the records requested pursuant to FOIA may, after exhausting their administrative remedies, seek legal redress from the federal district court to “enjoin the agency from withholding agency records and to order agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). In FOIA actions, the burden is always on the government agency to demonstrate that any records are being properly withheld pursuant to one of the nine express statutory exemptions. See 5 U.S.C. § 552(b).

IV ARGUMENT

1. Defendants Have Failed to Provide Any Basis for Withholding All Records Responsive to Plaintiff’s August 2009 FOIA Request In this action, Federal Defendants have clearly failed to meet their burden of demonstrating any lawful basis for failing to provide Plaintiff with any records responsive to his August 2009 FOIA request. It is well settled FOIA jurisprudence that an agency may lawfully withhold records under FOIA based solely upon application of one of the nine statutory exemptions, and may not attempt to withhold records by asserting any other basis or reasons that are not within the parameters of these express statutory FOIA exemptions. See e.g. Environmental Protection Agency v. Mink, 410 U.S. 73, 79 (1973). However, in the present action, Defendants have not, and cannot, provide any lawful basis for their failure to provide any non-exempt responsive records to Plaintiff’s FOIA request. In the absence of any lawful basis for withholding all responsive records, Defendants must resort to making disingenuous arguments, such as suggesting that an agency somehow can “undo” Plaintiff’s constructive exhaustion of administrative remedies by subsequent actions of the agency after the filing of a civil action. See e.g. Defendants’ Motion To Dismiss (Court Doc. 31). Notably absent from the Defendants’ court filing is any attempt to provide a statutory basis, by reference to any of FOIA’s nine statutory exemptions, that would allow them to argue that there is not a single responsive document that the agency should be providing to Plaintiff at this time in response to his FOIA request at issue in this action. In fact, Defendants have not submitted any declarations, or any other support, for their continued failure to provide Plaintiff with any records responsive to this FOIA request. Defendants have clearly not met their burden to demonstrate that all responsive records are properly withheld pursuant to one of the nine express statutory exemptions in this action. See 5 U.S.C. § 552(b). Federal Defendants apparently recognize that they can delay providing members of the public with any agency records by simply ignoring FOIA requests and FOIA appeals, a tactic which was employed in the present action by both Defendant FBI and Defendant DOJ. See Dec. Monaghan ¶¶ 2-4. Upon the filing of the present action, Defendants have still remained steadfast in refusing to provide Plaintiff with any records responsive to this FOIA request, and in refusing to step forward with any lawful basis to support their actions under FOIA. If Defendants had a lawful basis for their withholdings, one would expect to see some basis asserted in the Defendants’ Motion for Summary Judgment filings. However, a detailed review of Defendants’ Summary Judgment Motion, and detailed review of the Declaration of the FBI’s declarant, Mr. Hardy, demonstrates that Defendants have made no attempt to support the agency’s withholding of all responsive records with any legal or factual arguments, or to even remotely suggest there is a lawful basis for the agency’s failure to provide any and all responsive records. See Dec. Hardy (providing no basis, under any of FOIA’s 9 statutory exemptions, for the agency’s continued withholding of all records responsive to Plaintiff’s August 2009 FOIA request). In the absence of the agency meeting its burden of showing any lawful basis for their withholding all records responsive to Plaintiff’s FOIA request, Federal Defendants have clearly not met their obligations under FOIA, and therefore, Plaintiff is entitled to Summary Judgment as a matter of law in this action.

2. Defendants Have Failed to Demonstrate Undertaking an Adequate Search for
Responsive Records to Plaintiff’s FOIA Request

In responding to a FOIA request, an agency must undertake a search for agency records that is “reasonable designed to locate all records responsive to the FOIA request.” See e.g. Church of Scientology Int'l v. U.S. Dept. of Justice, 30 F.3d 224, 230 (1st Cir. '94) (adequacy of FOIA search is whether agency's search was "reasonably calculated to discover the requested records"); see also Maynard v. C.I.A., 986 F.2d 547, 559 - 560 (1st Cir. ‘93); Campbell v. U.S. Dept. of Justice, 164 F.3d 20, 28 (D.C. Cir. ‘98); Oglesby v. U.S. Dept. of Army, 920 F.2d 57, 68 (D.C. Cir. ‘90); Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 327 (D.C. Cir. ‘99); Judicial Watch Inc. v. U.S. Department of Commerce, 34 F.Supp.2d 28, 44-45 (D.D.C. ‘98). In order to meet its burden as to the adequacy of search for responsive records to a FOIA request, an agency must submit “a reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials ... were searched. “ Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir 1999). The agency’s affidavit must be specific enough to provide the Court with reasonable assurance as to the adequacy of the agency’s search, and to otherwise demonstrate that all file systems likely to contain responsive records have been searched. See e.g. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007); see also Steinberg v. U.S. Dept. Of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). However, in the present action, Defendants have provided no evidence to demonstrate that the agency has initiated an appropriate search for responsive records to Plaintiff’s August, 2009 FOIA request. Although the FBI’s declarant has suggested that the agency has already initiated a search for responsive records, the agency’s declaration is woefully inadequate, by failing to describe the nature of the agency’s search, providing no description of the systems of agency records that have been searched, by failing to describe any of the search terms that have been utilized, and by providing no description of the methodology employed by the agency in searching for responsive records for Plaintiff’s August 2009 FOIA request. In the absence of any detailed information from the agency, describing the nature of the search for responsive records to Plaintiff’s FOIA request, Defendants have clearly not met their burden of demonstrating the adequacy of their search for records, and therefore, Plaintiff is entitled to Summary Judgment as a matter of law.

3. Defendants Are Attempting to Charge For Unlawful Search Fees

Defendants are presently asserting that Plaintiff has “still not paid” or otherwise agreed to pay the agency for FOIA search fees for his August 2009 FOIA request at issue in this action. See Defendant’s Motion To Dismiss (Court Doc. 31) at 4-5. Defendant’s Declarant, Mr. Hardy, states that the FBI is requiring payment of $864 in FOIA search fees for Plaintiff’s August, 2009 FOIA request. See Dec. Hardy ¶ 8 (Court Doc 31-1). However, as a matter of law, Plaintiff is not required to pay for the above referenced FOIA search fees sought by the FBI. Pursuant to the recent amendments to FOIA provided by the OPEN Government Act of 2007, a federal agency cannot lawfully charge any search fees to a FOIA requester if the agency failed to comply with the time requirements for responding to a FOIA request or a FOIA appeal required by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See 5 U.S.C. § 552(a)(4)(A)(viii). That section of FOIA provides: An agency shall not assess search fees (or in the case of a requester described under clause (ii)(II), duplication fees) under this subparagraph if the agency fails to comply with any time limit under paragraph (6), if no unusual or exceptional circumstances (as those terms are defined for purposes of paragraphs (6)(B) and C respectively) apply to the process of the request.). See 5 U.S.C. § 552(a)(4)(A)(viii). In the present action, it is beyond dispute that the FBI did not issue a final determination within the 20 working day time period for responding to a FOIA request, and in fact did not respond to Plaintiff’s August 31, 2009 FOIA request until well after the filing of the present action, on January 13, 2010. See Dec. Hardy ¶¶ 5-8. Moreover, in the present action, it is also beyond dispute that Defendant Department of Justice did not timely (or ever) respond to Plaintiff’s FOIA appeal of September 29, 2009, that was received by the Department of Justice on October 1, 2009. See Dec. Monaghan ¶ ¶ 6-7. Therefore, based upon the Defendants failure to comply with the time frames expressly required by law for responding to Plaintiff’s FOIA request and administrative appeal, the Defendants are expressly prohibited, pursuant to FOIA, from assessing any search fees to Plaintiff for his FOIA request that is at issue in this action. See 5 U.S.C. § 552(a)(4)(A)(viii). As there are no material factual issues in dispute as to this issue, Plaintiff is entitled to summary judgment, as a matter of law, that Defendant FBI’s attempted assessment of search fees for Plaintiff’s August 2009 FOIA request violate 5 U.S.C. § 552(a)(4)(A)(viii), and are contrary to law.

4. Request For Reconsideration and Relief From The Court’s Fee Waiver Order

This Court should also exercise its discretion to reconsider its June 17, 2010 Order (Court Doc. 27) denying Plaintiff’s fee waiver request in the present action, pursuant to Federal Rule of Civil Procedure 6 (b), on the grounds of significant mistake as to the material factual and legal basis which was previously submitted by the parties for the Court’s prior review of that issue. First and foremost, the Court’s ruling as to Plaintiff’s fee waiver issues was based upon consideration of documents that were clearly not in fact part of the Administrative Record for the agency’s fee waiver review, and that were in fact “post hoc” documents created only after the filing of the instant action. See Dec. Monaghan ¶ ¶ 8- 15 (filed herewith). As noted in Plaintiff’s Declaration filed herewith, at the time that the parties presented briefing as to the FOIA fee waiver issue issues presented in this action, Plaintiff agreed to sign, as a pro se litigant, a stipulation that was prepared by the counsel for Defendants, affirming what Defendants’ counsel represented as being the “administrative record” for this action. See Dec. Monaghan; see also Court Doc 18 and Court Doc-18-1. Plaintiff now recognizes that the stipulated “Administrative Record” prepared by Defendants’ counsel also included materials that were clearly not properly within the administrative record for this action, and therefore not properly within the scope of materials that should be reviewed for the “on the record” review of fee waiver issues in this matter. Id. In fact, based upon this Court’s ruling of June 17, 2010, Plaintiff now understands that the majority of documents which Defendant presented to the Court as the “administrative record” in this action via this stipulation (Court Doc 18) were not actually proper components of the administrative record before the agency for his FOIA request at issue in this litigation, for the same reasons that this Court observed in its prior ruling in this action, holding that a federal court’s review of fee waiver issues is expressly limited by the FOIA statute to an “on the record review” of the administrative record that was before the agency (see Court Order 27 at 2) (citing Friends of the Coast Fork v. U.S. Dept. Of Interior, 10 F.3d 53 (9th Cir. 1997). Therefore, although the “Stipulation and Notice of Filing Administrative Record” (Court Doc 18 and 18-1) lists five documents as constituting the “administrative record” in this action, as noted above, there was a significant mistake in the parties making that representation to the Court, and a detailed review of the materials filed therewith clearly demonstrates that only the first two items (the FOIA request and FOIA appeal submitted as AR 01-04) were properly submitted as being the administrative record for this action for purposes of this Court’s fee waiver review. Each of the remaining documents include dates demonstrating that they were in fact produced after the filing of this action, and therefore, were clearly not part of the administrative record before the agency at the time this action was commenced. For example, the FBI’s letter dated January 13, 2010 was clearly not a record before the agency at the time that this action was filed, and is therefore not properly a component of the administrative record before the agency for purposes of judicial review of the fee waiver issue in this action. It is undisputed that this letter was created by the FBI only after the filing of this action, by reference to the date of this letter, and therefore it cannot be seriously disputed this letter was not component of the administrative record reviewed by the agency prior to the filing of this action. It is also clear that the administrative record in this matter did not include the printouts from a blog / web site, submitted as item #4 in the parties’ submission of the “administrative record” in this action, as review of these documents expressly indicate they were created from an online web site on December 10, 2009, after the filing of this action, and therefore were not a component of the administrative record before the agency in this action. None of these pages (AR 08-AR21) were in fact submitted to the agency as a component of the administrative record in this action, see Dec. Monaghan ¶ 14, and these pages are not properly a component of the administrative record for this Court’s on the record fee waiver review. In addition, the print out of a page from a book, set forth as AR 22, was also not a component of the administrative record. This document indicates on its face that it was created on January 11, 2010, after the filing of this action, and this document was not submitted to the agency as a component of the administrative record in this action, see Dec. Monaghan ¶ 15, and therefore is also not properly a component of the administrative record.
Lastly, there is another significant material mistake of fact that merits this Court’s reconsideration of its prior ruling on the FOIA fee waiver issues in this action. At the time of the parties prior briefing on this issue, the parties were apparently unaware of the fact that Defendant FBI was legally precluded from charging their FOIA search fees for the FOIA request at issue in this action as a result the 2007 Open Government Act amendments to FOIA, which expressly provides that no search fees may be charged by an agency to a FOIA requester if the agency fails to meet the applicable time frames for responding to a FOIA request or FOIA appeal. See 5 U.S.C. 552 (a)(4)(A)(viii) (no search fees may be charged if agency fails to meet applicable response deadlines). Therefore, the Court was not previously informed by the parties that the FOIA search fees that Defendant FBI has sought to assess to Plaintiff for the FOIA request at issue in this action was prohibited, as a matter of law, based upon the agency’s failure to timely respond to Plaintiff’s FOIA request and FOIA appeal within the time frames required for those actions by the FOIA statute. See 5 U.S.C. 552 (a)(4)(A)(viii). Based upon the fact that the Court’s prior review of the fee waiver issue included and made material reference to documents that were not actually components of the administrative record, and based upon the fact that the agency’s basis for asserting FOIA search fees referenced in the Court’s June 17, 2010 order are in fact prohibited, as a matter of law, by the express statutory language of 5 U.S.C. 552 (a)(4)(A)(viii), this Court should reconsider and provide relief from its prior ruling granting summary judgment to the Defendants as to the FOIA fee waiver issues presented in this action.

V. CONCLUSION

Therefore, for all of the reasons set forth above, this Court should grant Plaintiff’s Motion for Summary Judgment, and reconsider the Court’s prior ruling as to the fee waiver issue (Court Doc. 27) in the above captioned action. Respectfully submitted this ___ day of December, 2010 in Las Vegas, Nevada.
_________________
Aidan Monaghan
Plaintiff , Pro Se

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MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Pursuant to Rules 12(b)(1) and 56 of the Federal Rules of Civil Procedure, Federal Defendant, the United States Department of Justice, moves for dismissal or, in the alternative, for summary judgment against Plaintiff Aidan Monaghan (“Plaintiff” or “Monaghan”) in this action arising under the Freedom of Information Act, 5 U.S.C. § 552 (the “FOIA”). This motion is based on the following Memorandum of Points and Authorities, the Declaration of David Hardy (attached hereto as Exhibit A), the Administrative Record (#18-1) (“AR”), and all papers and pleadings on
file.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This action arises under the FOIA. Monaghan made a request to Defendant’s Federal Bureau of Investigation (“FBI”) for certain categories of records related to the terrorist attacks of September 11, 2001, as well as a request for a waiver of the fees usually charged for the searching and copying of records.1 In this action, the parties agreed, and the Court approved, a bifurcated briefing schedule to address the issue of a fee waiver before addressing, if necessary, the issue of a substantive response to Monaghan’s request for records. See Order #16. After briefing on the first issue, the Court ruled that Monaghan was not entitled to a fee waiver. See Order #27. Despite failing to obtain a fee wavier, Monaghan has still not paid the $864 in FOIA fees accrued as January 2010. See Ex. A Hardy Decl ¶¶ 8, 14; AR05, AR07. Because Monaghan did not obtain a fee waiver and has not paid the requisite FOIA fees, Monaghan has not exhausted administrative remedies. Therefore, Monaghan is not entitled to any requested records. Accordingly, the Court should dismiss this action or enter summary judgment against Monaghan.

1 The FBI’s “PENTTBOM” file on the 9/11 attacks is the largest, most complex investigative file in the history of the FBI. See Ex. A Hardy Decl. at 3 n.1; AR05.

II. LEGAL STANDARDS

Rule 12(b)(1) authorizes a challenge based on lack of subject matter jurisdiction; see also Fed. R. Civ. P. 12(h)(3) (“the court must dismiss the action” if it “determines at any time that it lacks subject-matter jurisdiction”). In Rule 12(b)(1) facial attacks, the Court looks at the sufficiency of the allegations for subject matter jurisdiction including an express waiver of sovereign immunity. Whitehorn v. F.C.C., 235 F. Supp. 2d 1092, 1095 (D. Nev. 2002) (citations omitted). In Rule 12(b)(1) factual attacks, the Court can hear and weigh extrinsic evidence, resolve factual disputes, and decide if it has subject matter jurisdiction without assuming the allegations in the complaint are true. See id. at 1096 (citations omitted); accord McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988) (when considering a 12(b)(1) jurisdictional motion, a court may consider affidavits and other evidence and resolve factual disputes without converting the motion into one for summary judgment) (citations omitted). Summary judgment is appropriate when the there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2). Additionally, summary judgment is generally the procedural vehicle by which FOIA cases are resolved. Wickwire Gavin, P.C. v. U. S. Postal Service, 356 F.3d 588, 591 (4th Cir. 2004) (declaring that FOIA cases are generally resolved on summary judgment); Cooper Cameron Corp. v. United States, 280 F.3d 539, 543 (5th Cir. 2002) (“[s]ummary judgment resolves most FOIA cases . . . .”); South Yuba River Citizens League v. National Marine Fisheries Serv., No. CIV. S-06-2845 LKK/JFM, 2008 WL 2523819, at *4 (E.D. Cal. June 20, 2008) (“‘Summary judgment is the procedural vehicle by which
nearly all FOIA cases are resolved’”) (citation omitted).

III. STATEMENT OF MATERIAL FACTS THAT ARE NOT GENUINELY IN DISPUTE

In August 2009, Monaghan made a request to Defendant’s FBI for (1) certain categories of records related to the terrorist attacks of September 11, 2001, and (2) a waiver of the fees usually charged for searching and copying records. See AR01-02 (undated letter); see also AR03, AR05 (each stating that the request was received by the FBI on August 31, 2009); Ex. A Hardy Decl ¶ 5. After Monaghan commenced this action, the FBI issued a letter formally denying Monaghan’s request for a fee waiver on January 13, 2010, see AR05-07, Ex. A Hardy Decl ¶ 8. As of the January 13, 2010 denial letter, the FBI had spent fifty-four hours searching for responsive documents, and the FOIA fees amounted to $864. See AR05, AR07; Ex. A Hardy Decl ¶ 8. After the parties briefed the issue of a fee waiver, this Court ruled that Monaghan was not entitled to a fee waiver. See Order #27. Yet, although Mongahan has been informed several times during the past year of the requirement to pay the FOIA fees, he has not done so. See Ex. A Hardy Decl ¶¶ 8, 14; AR05, AR07.

IV. ARGUMENT

Unless a federal agency has “(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records,’” “a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting from Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980)). Furthermore, a plaintiff must exhaust administrative remedies under the FOIA in order to obtain judicial review. See Ioane v. Comm’r of Int. Rev. Serv., No. 3:09-cv-00243-RCJ-RAM, 2010 WL 2600689, at *4 (D. Nev. March 11, 2010) (citing Dettmann v. U.S. Dep’t of Justice, 802 F.2d 1472, 1476-77 (D.C. Cir. 1986)). If the plaintiff fails to make the request in accordance with the agency’s FOIA regulations, including as to payment of fees, then the plaintiff has failed to exhaust administrative remedies. See id. (various citations omitted). The FOIA generally requires requesters to pay search and duplication fees. See Order #27 at 2:16-17 (citing Kissinger, 445 U.S. 136); see also 28 C.F.R. § 16.11 (Department of Justice’s regulation on FOIA fees). Payment is required “[r]egardless of whether the plaintiff ‘filed’ suit before or after receiving a request for payment . . . .” Trueblood v. U.S. Dep’t of Treas., 943 F. Supp. 64, 68 (D.D.C. 1996). Agencies may also require advance payment of fees upon a determination that the FOIA fees will exceed $250. See 5 U.S.C. § 552(a)(4)(A)(v). There is no genuine dispute that Monaghan failed to obtain a fee waiver and failed to pay the $864 in FOIA fees incurred as of January 13, 2010 (as well as failed to make any commitment to pay future FOIA fees related to his request). See Order #27; Ex. A Hardy Decl ¶¶ 8, 14; AR05, AR07). Consequently, Monaghan has not complied with the FOIA and the implementing regulations of the Department of Justice; he has not exhausted administrative remedies; and he is not entitled to relief in this matter. As a further result, the FBI has not “(1) ‘improperly’ (2)
‘withheld’ (3) ‘agency records,’” and this “district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” Tax Analysts, 492 U.S. at 142
(quoting from Kissinger, 445 U.S. at 150.

V. CONCLUSION

For the reasons explained above, the Court should dismiss this action for lack of subject matter jurisdiction or grant summary judgment in favor of Defendant and against Monaghan.

Dated: October 14, 2010.

Respectfully submitted,

DANIEL G. BOGDEN
United States Attorney

PATRICK A. ROSE
Assistant United States Attorney