1 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RICHARD ANTHONY,

Plaintiff,

v. 

 

FEDERAL BUREAU OF PRISONS,

Defendant.

 Case No. 1:22-cv-01558 (TNM)

MEMORANDUM OPINION AND ORDER

 Richard Anthony sues the Bureau of Prisons under FOIA to obtain documents about a 

correctional officer’s alleged misconduct. BOP released four records in full and two with 

redactions. It now moves for summary judgment, arguing that Anthony failed to exhaust 

administrative remedies and that his challenge to the four documents produced in full is moot. 

The Court grants BOP’s motion in part as to the four records it fully produced, but denies its 

motion as to exhaustion. Still, BOP may renew its motion for summary judgment within 30 days 

to show that it satisfied its FOIA obligations for the rest of Anthony’s request. 

I.

 First, a preliminary note. Anthony proceeds pro se, so the Court considers all of his 

filings together. Sanchez-Mercedes v. Bureau of Prisons, 453 F. Supp. 3d 404, 411 (D.D.C. 

2020), aff’d, 2021 WL 2525679 (D.C. Cir. June 2, 2021) (per curiam). But Anthony failed to 

oppose the Government’s Statement of Material Facts as required by the Local Rules. See Stmt. 

of Mat. Facts Not in Dispute (SMF), ECF No. 20-2. While the Court draws on the SMF 

throughout this Memorandum, it excuses Anthony from filing responses to the facts bearing on 

exhaustion. Anthony clearly contends that he exhausted administrative remedies in his filings. 
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And, even if the Court deemed the SMF admitted, the Government has not included facts 

sufficient to grant summary judgment in its favor as to the two redacted documents it produced. 

With that housekeeping, the Court turns to the facts. 

Anthony is currently incarcerated at FCI Talladega Camp, and he had served time at FCI 

Oakdale. See Compl. ¶ 5, ECF No. 1. In September 2021, he sent a FOIA request to BOP 

seeking “copies of any and all documents generated by [BOP] regarding FCI Oakdale Officer 

Ms. P. Lemieux’s misconduct in 2018,” plus copies of “Administrative Remedies” he submitted 

to the prison. Ex. 1, ECF No. 1-2 (FOIA request). Anthony also requested expedited review. 

See Ex. 1; SMF ¶ 3. BOP confirmed receipt, and denied his expedite request within twenty 

business days. See SMF ¶ 5; see also Ex. B (October Letter), ECF No. 20-4. Its letter advised 

Anthony how to appeal the denial of expedited processing. See SMF ¶ 6; see also October 

Letter. Anthony did not file an appeal within 90 days. See Decl. of BOP Paralegal Specialist 

Shelly Emberton (“Emberton Decl.”) ¶ 4, ECF No. 20-3. Instead, he sued about a month later. 

Since Anthony sued, BOP produced four pages of records in full and two pages in part. 

See SMF ¶ 7; Ex. D, ECF No. 13–18 (records). In the two redacted pages, BOP withheld 

information under Exemptions 6 and 7(C). See Ex. C, ECF No. 20-4; Emberton Decl. ¶ 3. BOP 

also issued a Glomar response to Anthony’s request for documents about a certain employee’s 

misconduct, noting that it could neither confirm nor deny their existence. See Ex. C; see also 

Emberton Decl. ¶ 3. BOP again explained how Anthony could appeal within the agency. See id. 

But Anthony has not. See SMF ¶¶ 9–11; Emberton Decl. ¶¶ 4, 5. 

BOP now moves for summary judgment, contending that Anthony failed to exhaust 

administrative remedies and that part of his FOIA request is now moot. See Gov’t Mot. for 
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Summ. J. (MSJ), ECF No. 20. BOP’s motion is ripe and this Court has jurisdiction under 5 

U.S.C. § 552(a)(4)(B). 

II.

To prevail on a motion for summary judgment, a party must show that “there is no 

genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). FOIA requires “disclosure of 

documents held by a federal agency unless the documents fall within one of nine enumerated 

exemptions, which are listed at 5 U.S.C. § 552(b).” U.S. Fish & Wildlife Serv. v. Sierra Club,

Inc., 141 S. Ct. 777, 785 (2021). To obtain summary judgment, the agency bears the burden to 

show the applicability of the claimed exemptions. See ACLU v. DOD, 628 F.3d 612, 619 (D.C. 

Cir. 2011). 

To meet its burden, an agency may rely on declarations. See Shapiro v. DOJ, 893 F.3d 

796, 799 (D.C. Cir. 2018). Those declarations receive “a presumption of good faith.” SafeCard 

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). The Court may grant summary 

judgment based solely on the agency’s declarations if they are not contradicted by contrary 

record evidence or by evidence of the agency’s bad faith. See Aguiar v. DEA, 865 F.3d 730, 

734–35 (D.C. Cir. 2017). 

Anthony proceeds pro se, so the Court “liberally construe[s]” his filings. Erickson v. 

Pardus, 551 U.S. 89, 94 (2007). That accommodation does not, however, allow him “to ignore 

the Federal Rules of Civil Procedure.” Oviedo v. WMATA, 948 F.3d 386, 397 (D.C. Cir. 2020). 

He still must show that a genuine issue of material fact exists. See Fed. R. Civ. P. 56(a). 

III.

BOP moves for summary judgment on the primary basis that Anthony did not exhaust 

administrative remedies before suing. See MSJ at 4–5. It does not defend the adequacy of its 
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search or argue that it properly claimed exemptions, articulated foreseeable harm from release, or 

satisfied the segregability requirement. BOP argues that (1) Anthony never administratively 

appealed its October letter denying expedited processing of his FOIA request, and (2) that 

Anthony never administratively appealed the July 2022 production of six records, two of which 

were redacted. See SMF ¶¶ 9–11; Emberton Decl. ¶¶ 4–5. 

FOIA provides that agencies must determine within 20 business days “whether to comply 

with [a FOIA] request.” 5 U.S.C. § 552(a)(6)(A)(i). “In the case of an adverse determination”—

i.e., the agency decides not to comply with a request—the requester has 90 days to 

administratively appeal. See id. § 552(a)(6)(A)(i)(III)(aa). If the agency blows its 20-day 

deadline, the requester “shall be deemed to have exhausted his administrative remedies.” 5 

U.S.C. § 552(a)(6)(C)(i). The first route is called “actual” exhaustion, while the second is 

“constructive” exhaustion. See, e.g., Nat’l Sec’y Counselors v. CIA, 931 F. Supp. 2d 77, 95 

(D.D.C. 2013). 

In FOIA cases, exhaustion of administrative remedies is generally required “before filing 

suit in federal court[.]” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003). This requirement 

exists “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.” Id.; see also CREW v. FEC, 711 F.3d 180, 

182 (D.C. Cir. 2013) (“[A] FOIA requester must exhaust administrative appeal remedies before 

seeking judicial redress.”). 

That said, courts in this district have held that exhaustion is not required before a 

requester may sue over an agency denial of expedited processing. See, e.g., CREW v. DOJ, 436 

F. Supp. 3d 354 (D.D.C. 2020); ACLU v. DOJ, 321 F. Supp. 2d 24, 28 (D.D.C. 2004). This is so 

because a different part of FOIA provides that “agency action to deny . . . a request for expedited 
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processing . . . shall be subject to judicial review.” 5 U.S.C. § 552(a)(6)(E)(iii). Courts have 

held this to be an explicit jurisdictional grant over such claims, whether or not the requester 

exhausted. See, e.g., ACLU, 321 F. Supp. 2d at 28. 

A few textual clues bolster that reading. First, this subsection appears just before a 

jurisdiction stripping provision. That subsection provides that a court “shall not have 

jurisdiction” over a denial of expedited processing “after the agency has provided a complete 

response to the request.” 5 U.S.C. § 552(a)(6)(E)(iv). The logical inference is that the provision 

before grants jurisdiction in all other scenarios. Second, the actual and constructive exhaustion 

provisions pertain to an “adverse determination,” id. § 552(a)(6)(A)(i)(III), which refers back to 

the agency’s decision “whether to comply with [a FOIA] request” or not, id. § 552(a)(6)(A)(i). 

That section most naturally refers to whether or not the agency will produce documents at all, not 

the speed with which it will process them. Id. § 552(a)(6)(A).1

 

BOP hangs its hat on the contention that Anthony failed to exhaust administrative 

remedies for the October letter. See, e.g., Emberton Decl. ¶ 4. Recall that all the October letter 

did was deny Anthony’s expedite and inform him that he was in the normal processing queue. 

See Ex. B. But BOP does not acknowledge, let alone distinguish, the authorities just discussed 

holding that requesters need not exhaust denials of expedite requests. 

In any event, Anthony swears he never received the letter. See Pl.’s Opp’n at 2–3; see 

also Decl. of Richard Anthony (Anthony Decl.) ¶ 2, ECF No. 24-1. In fact, Anthony claims he 

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 One textual clue cuts against this interpretation. FOIA also instructs agencies that regulations 

they promulgate about expedited processing “must ensure . . . expeditious consideration of 

administrative appeals of such determinations of whether to provide expedited processing.” 5 

U.S.C. § 552(a)(6)(E). This seems to suggest that a requester at least could administratively 

appeal an agency’s denial of his expedite. But it does not foreclose the possibility that judicial 

review is immediately available based on the jurisdiction-granting language in 5 U.S.C. 

§ 552(a)(6)(E)(iii). 
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is “very familiar” with FOIA and “would not have” sued BOP had he timely received the 

October letter. Anthony Decl. ¶ 5. Other courts have found in analogous circumstances that 

such sworn statements create a genuine issue of material fact as to whether the requester truly 

failed to exhaust. See Pinson v. DOJ, 69 F. Supp. 3d 125, 132 (D.D.C. 2014) (denying summary 

judgment to the Government on exhaustion grounds for this reason); Hudgins v. IRS, 620 F. 

Supp. 19, 21 (D.D.C. 1985) (explaining that plaintiffs are deemed to have exhausted their 

administrative remedies if the Government fails to inform them of the right to appeal). 

BOP also argues that Anthony failed to exhaust after its July 2022 production of six 

records to him. See SMF ¶¶ 9, 11; Emberton Decl. ¶ 5. But the cases it cites hold that 

exhaustion is generally required when an agency produces documents to a requester before he 

has sued. See MSJ at 4–5. That context differs from the in medias res situation here. Recall that 

at this point, Anthony’s suit had been pending for about eight months. 

Because FOIA’s exhaustion requirement is prudential rather than jurisdictional, the Court 

must evaluate whether the “purposes of exhaustion” support barring suit at this point. Those 

purposes are “preventing premature interference with agency processes” and allowing the agency 

“to make a factual record to support its decision.” Hidalgo, 344 F.3d at 1258–59. The second 

purpose is obviously not served because Anthony has run out of time to exhaust. Because the 

90-day window has passed, any internal agency appeal would be rejected and BOP could make 

no further factual record. More, BOP has already produced redacted records to Anthony and 

asserted various exemptions. All that is left is for BOP to legally support those exemptions as in 

any other FOIA case. In short, the purposes of exhaustion are not served by requiring Anthony 

to pursue a futile administrative appeal.
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* * *

BOP also contends that Anthony’s suit is moot as to the four records it produced to him 

in full. With this, the Court agrees. Accord Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) 

(“Once the records are produced the substance of the controversy disappears and becomes moot 

since the disclosure which the suit seeks has already been made.”); Heily v. DOD, No. 13-cv5055, 2013 WL 5975876, at *1 (D.C. Cir. Oct. 16, 2013) (per curiam) (affirming dismissal of 

plaintiff’s claims as moot after plaintiff received the requested documents while case was 

pending). While this may be a different case if Anthony had contested the adequacy of their 

search, see, e.g., Brustein & Manasevit, PLLC v. U.S. Dep’t of Educ., 30 F. Supp. 3d 1, 6–7 

(D.D.C. 2013), he does not. It is “undisputed that [BOP] has produced fully” four of the 

documents Anthony sought. Id. at 6; see also SMF ¶ 7. 

Still, BOP has not shown that it is entitled to summary judgment on the rest of his 

request. BOP did not argue, or support with declarations, that its search was proper, that its 

asserted exemptions and Glomar response were justified, or that it satisfied its foreseeable harm 

and segregability burdens.

IV. 

For these reasons, the Court GRANTS IN PART BOP’s Motion for Summary Judgment

as to the four documents BOP produced in full. But it DENIES the motion insofar as it seeks 

summary judgment based solely on failure to exhaust administrative remedies. It is also 

ORDERED that BOP shall renew its motion for summary judgment on or before June 

22, 2023, as to the rest of Anthony’s request. In that motion, BOP shall discuss everything 

needed to meet its burdens under FOIA. It is also 
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ORDERED that Anthony shall respond to that motion on or before July 22, 2023. BOP 

shall file any reply on or before August 5, 2023. 

SO ORDERED.

Dated: May 23, 2023 _____________________________

TREVOR N. McFADDEN, U.S.D.J.