IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NEAL NELSON, )

)

Plaintiff, )

)

v. ) No. 12 C 4718

)

) Judge Rebecca R. Pallmeyer

UNITED STATES ARMY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Neal Nelson (“Nelson”) develops and sells business-oriented software applications. 

One such product, the X-Remote Terminal Emulation (“X-RTE”) software suite, allows users of

newer computers to access programs written for older machines. Nelson licensed the X-RTE for

use by the United States Army (“Army”) in the late 1990s, but he now suspects the Army is making

the software available to third parties, thereby violating the licensing agreement and interfering with

Nelson’s own commercial interest in marketing the software. To investigate these concerns, Nelson

filed five Freedom of Information Act (“FOIA”) requests seeking information concerning any nongovernment organizations that paid the United States Army (“Army”) for use of its computer network

testing facility. Nelson’s requests sought information spanning the period from 2001 through 2011. 

The Army released information in response to two of Nelson’s requests, but withheld certain data,

primarily under the FOIA exemption that protects the confidential commercial information of third

parties from disclosure. Nelson now brings this pro se action against the Army, under 5 U.S.C. §

552 et seq., to compel Defendant to turn over additional documents in response to his FOIA

requests. Plaintiff further alleges that the Army’s incomplete disclosures entitle him to relief under

the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and he asks the court to

equitably toll the statute of limitations regarding any future claims he may bring against Defendant. 

The Army requested, and received, permission to bifurcate issues for the purpose of summary

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judgment [13]. Defendant now moves for summary judgment on Plaintiff’s FOIA claims based

solely upon Plaintiff’s alleged failure to exhaust his administrative remedies [16]. For the following

reasons, Defendant's motion is granted in part and denied in part.

BACKGROUND

The Army operates a Technology Integration Center (“TIC”) at Fort Huachuca, Arizona. 

(Def.’s Mem. of L. in Support of Def.’s Mot. for Summ. J. [17] (hereinafter “Def.’s Mem.”), at 1.) The

TIC maintains a computer-network testing facility where non-government commercial vendors

seeking to do business with the government can submit their products for evaluation to ensure

compatibility with existing Army network infrastructure. (Id.)

I. 2008 FOIA Request

Plaintiff’s involvement with the TIC originated in approximately 1988 when he began to

provide computer consulting and software licensing services to the Army at Fort Huachuca. 

(Compl. [1] ¶ 9.) In 1998 the Army purchased from Plaintiff a license to use X-Remote Terminal

Emulation (“X-RTE”), computer software developed and owned by Nelson; but at some point in

2004 Plaintiff came to believe that the TIC was using his software in violation of both the terms of

the licensing agreement and Army policy. (Id. ¶¶ 10-13.) Plaintiff informed General Michael

Mazzucchi, Commanding General of the Army’s Communications Electronics Command

(“CECOM”), of these concerns in a letter dated August 1, 2005. (Id. ¶ 66.) In response, General

Mazzucchi initiated an investigation with the CECOM Inspector General, which culminated in a

report dated November 21, 2006. (Report of Inquiry Case Number XC-05-0149, Ex. 10 to Compl.) 

The published, redacted report concluded that the activities at the TIC violated neither the software

license nor Army regulations. Plaintiff believes, however, that an earlier version of the report came

to the opposite conclusion. (Compl. ¶¶ 71, 73.) Based on this belief, Plaintiff filed a FOIA request

on February 12, 2008 seeking selected pages from the “original” draft version of the Inspector

General’s report. (FOIA Request of 2/12/08, Ex. 5 to Compl.) This FOIA request was denied in its

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entirety on March 7, 2008 in a letter from Defendant’s Deputy Legal Advisor Margaret Baines. 

(Letter from Baines to Nelson of 3/7/08, Ex. 5 to Compl.) Baines explained that the draft report was

exempt from disclosure pursuant to 5 U.S.C. § 552(b)(5) (“FOIA Exemption 5”), which “protects

against premature disclosure of proposed policies . . . .” (Id.) Plaintiff appealed Baines’s decision

on March 16, 2008. (Compl. ¶ 75.) On December 8, 2008, Defendant’s Associate Deputy General

Counsel Ronald Buchholz, acting on behalf of the Secretary of the Army, issued the final decision

on this request. (Letter from Buchholz to Nelson of 12/8/08, Ex. 5 to Compl.) While Nelson’s

request was initially denied under Exemption 5, Buchholz wrote that “denial under Exemption 5 was

inadvertent, and that the appropriate response should have been a ‘no records’ finding.” (Id.) 

Defendant claims that “there was no draft report to produce, as CECOM routinely destroys draft

reports . . . .” (Talbot-Bedard Decl. ¶ 15, Ex. A to Def.’s 56.1 [18].) According to Buchholz, “even

if such a draft had existed, it would have been properly denied under Exemption 5.” (Id.) It is

undisputed that Nelson has administratively exhausted this FOIA request by receiving an adverse

appellate determination from the head of the agency, and may seek judicial review in accordance

with 5 U.S.C. § 552(a)(4)(B). (Def.’s Rep. [24] at 1-2.) 

II. 2007 and 2009 FOIA Requests

After initially seeking and failing to obtain information from the Army regarding the TIC’s use

of X-RTE (but prior to filing his 2008 FOIA request discussed above), Nelson sent the first of his

FOIA requests to the U.S. Army Garrison in Fort Monmouth, New Jersey on March 5, 2007. (Pl.’s

56.1 [20] ¶ 5.) This request sought access to information regarding “all non-government

organizations that [had] paid to use the [TIC]” between 2001 and 2006, including the organizations’

identities, the amounts they paid the Army, and what tests they performed at the TIC. (FOIA

Request of 3/5/07, Ex. 2 to Compl.) On September 12, 2007, Plaintiff filed a second FOIA request

through his representative in Congress, Rep. Dennis Hastert, seeking substantially the same

information he had requested in March of that year. (FOIA Request of 9/12/07, Ex. 3 to Compl.) 

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Then, on January 22, 2009, while still awaiting action on his 2007 requests, Plaintiff submitted

another FOIA request to Fort Monmouth, again seeking “[i]nformation about non-government

organizations that have paid to use the ‘commercial’ testing facilities at the TIC between January

2001 and present.” (FOIA Request of 9/12/07, Ex. 4 to Compl.) The 2007 and 2009 FOIA requests

were ultimately processed together by Army FOIA Officer Ellen Edwards and denied due to

Plaintiff’s failure to pay pre-disclosure notification (“PDN”) fees associated with his request. (Pl.’s

56.1 ¶ 8.)

These requests later became the subject of litigation in which Nelson alleged that the Army

improperly processed his requests, that its fees were inaccurately estimated, and that no PDN was

required. Nelson v. U.S. Army, No. 10 C 1735, 2011 WL 710977, at *1 (N.D. Ill. Feb. 22, 2011). 

This court granted summary judgment in favor of the Army, dismissing Plaintiff’s case “without

prejudice to renewal of Plaintiff’s FOIA request upon payment of the costs of [PDN].” Id. at *9. On

March 29, 2011, following final judgment in that litigation, Plaintiff issued a check for $1159 to the

Army to cover the PDN fees related to his FOIA requests. (Pl.’s 56.1 ¶ 9.) Upon receipt of

Plaintiff’s payment, the Army TIC began pre-disclosure processing, contacting affected vendors and

assessing their potential exposure to substantial competitive harm as a result of possible

disclosures related to Plaintiff’s FOIA requests. (Id.) Defendant’s processing of Nelson’s FOIA

requests lasted several months, during which FOIA Officer Connie Quinn provided Plaintiff with

status updates and two interim releases on November 29, 2011 and December 12, 2011. (Id. ¶¶

9-10.) Quinn transmitted the final release in response to the 2007 and 2009 FOIA requests on

March 12, 2012 in the form of a spreadsheet listing vendors, dates of service, and amounts paid. 

(Ex. 7 to Compl.) The next day, March 13, 2012, Quinn e-mailed Plaintiff clarifying that five

vendors’ entries in this release had been redacted pursuant to 5 U.S.C. § 552(b)(4) (“FOIA

Exemption 4”) to protect the vendors from potential competitive harm. (Id. ¶ 11.) Plaintiff believed,

however, that these redactions were improper; and later that day, he e-mailed Quinn requesting a

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formal denial from the Initial Denial Authority (“IDA”).1

 On April 19, 2012—37 days later—the IDA,

CECOM Chief Counsel Maria Esparraguera, issued a decision upholding some of Officer Quinn’s

redactions based on FOIA Exemption 4, but requiring disclosure of certain other materials Quinn

had marked for redaction.2

 (Id. ¶¶ 11-12.) 

Esparraguera’s denial letter also informed Plaintiff of the procedure for further appellate

review: “You may appeal this denial to the Secretary of the Army . . . the appeal letter must be

received . . . within sixty (60) days of the date of this letter.” (Letter from Esparraguera to Nelson

of 4/19/12, Ex. A to Def.’s 56.1.) The Army never received an appeal from Nelson regarding his

2007 and 2009 FOIA requests. (Pl.’s 56.1 ¶ 12.) Therefore, it argues, Plaintiff has not exhausted

his administrative remedies and his claims related to these requests should be dismissed. (Def.’s

Mem. at 8.) Plaintiff contends, however, that the matter of his appeal is moot, because the Army

issued its IDA decision more than a month after Nelson filed his appeal, thereby failing to meet the

20-day statutory deadline.3

 The missed deadline, Plaintiff argues, served to constructively exhaust

his administrative remedies and, as a result, he “was not required to perform any additional

administrative appeals” prior to seeking judicial review. (Nelson Decl. [22] ¶¶ 14-16.) Plaintiff

further contends that the Army failed to comply with the FOIA’s time limits for his appeals dated

March 16, 2008, May 28, 2008, and June 22, 2009, as well. (Id. ¶ 13.) 

1 Pursuant to Army regulations, FOIA Officers are authorized to release records in

response to FOIA requests, but only IDAs have authority to deny portions of FOIA requests. 32

C.F.R. § 518.16(a). FOIA requesters may appeal IDA decisions to the Secretary of the Army within

60 days. 32 C.F.R. § 518.17(a), (c). The decision of the Secretary of the Army is considered a final

determination and is subject to judicial review in U.S. District Court. 32 C.F.R. § 518.18.

2 Esparraguera’s decision upheld three of Quinn’s five redactions and overturned two

for vendors IBM and Fortinet. These two entries were subsequently produced without redactions

and included in a spreadsheet attached to the IDA decision. (Letter from Esparraguera to Nelson

of April 19, 2012, Ex. A to Def.’s 56.1.)

3 “Each agency, upon any request for records . . . shall . . . make a determination with

respect to any appeal within twenty days . . . after the receipt of such appeal.” 5 U.S.C. § 552

(a)(6)(A)(ii).

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Plaintiff alternatively argues that he is entitled to judicial review of his September 12, 2007

and January 22, 2009 FOIA requests, because Defendant indicated as much in letters from

Buchholz dated February 9, 2009 and March 1, 2010, respectively. (Nelson Decl. ¶¶ 4-5.) In each

of these letters, Buchholz wrote, “This letter constitutes final action on behalf of . . . the Army . . .

You may, if you so desire, seek judicial review of this determination through the federal court

system in accordance with the provisions of the FOIA, 5 U.S.C. § 552(a)(4)(B).” (Nelson Decl. ¶¶

4-5.) As Defendant points out, however, these letters from Buchholz refer to Plaintiff’s appeals

regarding the PDN fees at the heart of the parties’ prior litigation, not the IDA determination at issue

in the instant case. (Def.’s Rep. at 2.) In fact, Buchholz wrote both letters over two years before

Esparraguera rendered the relevant IDA decision in April 2012. (Id.)

III. 2012 FOIA Request

During the Army’s processing of Plaintiff’s 2007 and 2009 FOIA requests, Plaintiff filed his

fifth and final FOIA request in this matter. (FOIA Request of 1/13/12, Ex. 6 to Compl.) Plaintiff

mailed that request to his congressional representative on January 13, and it reached the Army

FOIA officer on January 24, 2012. (Letter from Quinn to Nelson of 4/24/12, Ex. 6 to Compl.) This

request sought significantly more detailed information than his prior requests regarding the funds

collected from non-government organizations that used the TIC at Fort Huachuca between 2001

and 2011.4

 (Pl.’s 56.1 ¶¶ 15-16.) The Army set an initial response date of February 23, 2012 for

this request, but Quinn wrote a letter to Plaintiff on that date extending the deadline to March 23,

2012. (Letter from Quinn to Nelson of 2/23/2012, Ex. 6 to Compl.) The Army estimated that the

4 Specifically, Plaintiff’s January 13, 2012 FOIA request sought: “(1) each date when

any funds were received, (2) the amount of money received by date, (3) the date when any portion

of those funds were disbursed, (4) the amount of money disbursed by date, (5) the person or

organization to whom the funds were disbursed, and (6) details for justification, purpose, use and/or

reason for the disbursement.” (FOIA Request of 1/13/12, Ex. 6 to Compl.)

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fees associated with processing this “significantly more time intensive” request totaled $4,075,5

 but

Nelson’s request explicitly stated that he agreed to pay only “reasonable duplication fees . . . in an

amount not to exceed $100.” (Pl.’s 56.1 ¶¶ 15-16.) On April 24, Quinn wrote a letter to Plaintiff

explaining that unless he notified the Army by May 1, 2012 that he was willing to pay the processing

fee, his request would be administratively closed on that date. (Id. ¶ 17.) Quinn contacted Plaintiff

again via e-mail on May 1 to remind Plaintiff of the deadline, and when Nelson failed to contact the

Army, Quinn closed the request at the end of the following business day. (Id.) Plaintiff argues that

the Army’s failure to meet the 20-day FOIA response deadline laid out in 5 U.S.C. § 552(a)(6)(A)(I)

entitles him to judicial review despite the fact he has not paid the required fees. (Id.) 

IV. Bifurcation of Dispositive Motions

Defendant requested [13], and the court granted [15], the bifurcation of dispositive motions

in this case. The court agreed to first consider Defendant’s motion for summary judgment solely

on the issue of administrative exhaustion of Plaintiff’s FOIA claims. In its memorandum in support

of summary judgment, however, Defendant introduces arguments unrelated to the issue of

administrative exhaustion. Defendant’s reply memorandum suggests that “judicial economy” (which

the Army also cited in support of its motion to bifurcate) counsels in favor of reaching issues beyond

exhaustion. (Def.’s Rep. at 6 n.3.) While it may have proven more efficient to address all of

Defendant’s arguments for summary judgment in a single dispositive motion, Plaintiff was not

afforded the opportunity to address issues other than exhaustion to the extent that he relied upon

the bifurcation order. Accordingly, for purposes of this motion, the court will address only the issue

of administrative exhaustion of Plaintiff’s FOIA claims. Upon disposition of this motion, Defendant

5 Officer Quinn provided Plaintiff with a detailed summary of the Army’s fee estimates

in a letter dated April 24, 2012. The $4,075 estimate consisted of (1) $225 in copy charges, (2)

$2,508 in review charges, and (3) $1,342 in search charges. (Letter from Quinn to Nelson of

4/24/12, Ex. 6 to Compl.) Quinn’s estimates were based on rates established by the fee schedule

of 32 C.F.R. Subpart F.

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has indicated that, if necessary, it will file an additional motion for summary judgment based on the

merits of Plaintiff’s remaining claims. (Def.’s Mot. to Bifurcate ¶ 5.)

DISCUSSION

I. Standard of Review

Defendant seeks summary judgment on the ground that Plaintiff failed to exhaust

administrative remedies before he filed this lawsuit. Summary judgment is required “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). “A genuine issue of material fact arises only

if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that

party.” Egonmwan v. Cook County Sheriff’s Dept., 602 F.3d 845, 849 (7th Cir. 2010). In

determining whether factual issues exist, a court must view all the evidence and draw all

reasonable inferences in the light most favorable to the non-moving party. Weber v. Universities

Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir. 2010). 

II. FOIA Requests (Count I)

Plaintiff seeks disclosure of the records sought in his FOIA requests to the Army. For

purposes of this motion, Defendant argues only that Plaintiff may not seek judicial review of these

requests due to his failure to exhaust the available administrative remedies.

The FOIA was enacted to facilitate public access to Government documents. U.S. Dep't

of State v. Ray, 502 U.S. 164, 173 (1991). Accordingly, the FOIA generally requires federal

agencies to make their records available to the public on demand. 5 U.S.C. § 552(a). This general

policy, however, is subject to nine statutory exemptions, which authorize agencies to withhold

certain information from FOIA requesters. 5 U.S.C. § 552(b)(1)-(9). In addition to its nine

exemptions, the FOIA establishes the process by which FOIA requests are to be filed by requesters

and reviewed by agencies. The statute leaves to each agency, however, the task of promulgating

its own regulations to govern its responses to FOIA requests. 5 U.S.C. § 552(a)(1). For instance,

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each agency may “specify[] the schedule of fees applicable to the processing of requests . . . and

establish[] procedures and guidelines for determining when such fees should be waived or

reduced.” 5 U.S.C. § 552(a)(4)(A)(I). Pursuant to the FOIA, the Army has promulgated its own

regulations regarding the collection of fees for responding to FOIA requests. See 32 C.F.R. §

286.29. 

Consistent with this elaborate administrative scheme, FOIA requesters must exhaust their

administrative remedies prior to seeking judicial review. Almy v. U.S. Dep’t of Justice, No. 96-1207,

1997 WL 267884, at *3 (7th Cir. May 7, 1997); see also Oglesby v. U.S. Army, 920 F.2d 47, 64

(D.C. Cir. 1990).6

 Requesters may exhaust their administrative remedies in one of two ways: (1)

“actual” exhaustion or (2) “constructive” exhaustion. A requester “actually” exhausts his or her

administrative remedies where an agency’s determination is adverse, and that agency

determination is subsequently upheld in an administrative appeal “to the head of the administrative

agency.” 5 U.S.C. § 552(a)(6)(A)(I). Alternatively, a FOIA request is “constructively” exhausted

where “the agency fails to comply with the applicable time limit provisions” of the statute. 5 U.S.C.

§ 552(a)(6)(C)(I). For instance, the FOIA gives agencies only twenty days to (1) determine whether

to comply with a request, and (2) respond to any appeal. 5 U.S.C. § 552(a)(6)(A)(I), (ii). But when

a requester has filed suit after 20 days have elapsed without a FOIA response, the agency may

obtain a stay of the proceedings if it can show that “exceptional circumstances exist and that the

agency is exercising due diligence in responding to the request.” 5 U.S.C. § 552(a)(6)(C). 

Where, however, an agency fails to meet the FOIA’s deadlines and the requestor

6 Plaintiff suggests that Oglesby is inapplicable, but his assertion that “the appeals

court vacated the district court’s ruling against Oglesby” is inaccurate. (Pl.’s Rep. at 4-5.) In fact,

the D.C. Circuit “vacate[d] the order of the district court . . . and remand[ed] with orders to dismiss

appellant's claim against these agencies for failure to exhaust his administrative remedies.” 

Oglesby, 920 F.2d at 71. Plaintiff may be referring instead to a subsequent case involving the

same parties, which dealt with different issues immaterial in this case. See Oglesby v. U.S. Army,

79 F.3d 1172 (D.C. Cir. 1996). 

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nonetheless chooses to wait for the agency to respond prior to filing suit, “the FOIA allows the

agencies to have the benefit of the full administrative process before suit is filed.” Oglesby, 920

F.2d at 64-65; see also Goulding v. IRS, No. 97 C 5628, 1998 WL 325202, at *8 (N.D. Ill. June 8,

1998). That is, once an agency responds to a request, the FOIA requires the completion of the

administrative appeal process prior to judicial review. Similarly, constructive exhaustion does not

relieve requesters of the obligation to pay the fees associated with their requests. Goulding, 1998

WL 325202, at *9; see Oglesby, 920 F.2d at 66 (“[e]xhaustion does not occur until the required fees

are paid or until an appeal is taken from the refusal to waive fees”).

A. 2008 FOIA Request

The parties do not dispute that Plaintiff has exhausted his administrative remedies regarding

his 2008 FOIA request: Plaintiff received a denial from the Army’s IDA and appealed to the

Secretary of the Army, who upheld the IDA’s decision. Despite seeking (and receiving the court’s

permission) to bifurcate its dispositive motions, Defendant now asks the court to review the denial

of Nelson’s 2008 FOIA request on the merits because “the entire administrative record . . . has

been provided.” (Def.’s Rep. at 6 n.3.) The court declines this invitation, however, as Plaintiff has

not yet had the opportunity to address Defendant’s claims on the merits. Indeed, Defendant

acknowledges that Nelson’s response is focused on the uncontested proposition that his 2008 FOIA

request is exhausted. (Def.’s Rep. 6-7.) Accordingly, Defendant’s motion for summary judgment

based on exhaustion is denied as it relates to Plaintiff’s 2008 FOIA request.

B. 2007 and 2009 FOIA Requests

Defendant argues that it is also entitled to summary judgment on Plaintiff’s FOIA requests

from 2007 and 2009, because Nelson failed to properly exhaust the administrative remedies at his

disposal. (Def.’s Mem. at 7-8.) In response, Plaintiff contends he has exhausted his administrative

options both actually and constructively. As proof of actual exhaustion, Plaintiff points to letters

from Buchholz dated February 9, 2009 and March 1, 2010 stating that Nelson may now “seek

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judicial review of this determination through the federal court system.” (Pl.’s Rep. [21] at 4.) 

Plaintiff also argues that his claim was constructively exhausted “[w]hen the Army failed to respond

to Plaintiff’s . . . appeal within the time limit specified by the FOIA . . . .” (Pl.’s 56.1 ¶ 14.) Neither

of Plaintiff’s arguments is persuasive.

As Defendant points out, Buchholz’s letters are not relevant to exhaustion of the 2007 or

2009 requests. Those letters address Plaintiff’s responsibility to pay PDN fees which were the

subject of the parties’ prior litigation before this court. In fact, the same letters were cited by the

Plaintiff in that suit, which resolved the PDN fee issue in the Army’s favor. See Nelson, 2011 WL

710977, at *3. Plaintiff ultimately paid the PDN fees in 2011, and in March 2012 the Army

completed its disclosures relating to Nelson’s 2007 and 2009 FOIA requests. Nelson subsequently

sought a formal denial related to the information redacted from Defendant’s 2012 disclosures, and

the Army IDA issued a formal denial on April 19, 2012. Rather than appealing the IDA decision to

the Secretary of the Army, as required to exhaust his administrative remedies, Plaintiff filed the

instant suit. Because Plaintiff failed to pursue appellate review from the head of the agency, he has

failed to actually exhaust his administrative remedies under the FOIA. Regardless of the timeliness

of the Army’s initial response to Plaintiff’s FOIA requests, Plaintiff has also failed to constructively

exhaust his administrative remedies, as Defendant issued its IDA decision, appealable to the

Secretary of the Army, prior to Plaintiff’s filing suit. As a result, the FOIA requires Plaintiff to

complete the administrative appeal process prior to seeking judicial review. 

Plaintiff has neither constructively nor actually exhausted the administrative remedies

available to him under the FOIA. As a result, judicial review is inappropriate at this time. 

Defendant’s motion for summary judgment is, therefore, granted as to Plaintiff’s 2007 and 2009

FOIA requests.

C. 2012 FOIA Request

Defendant contends that Plaintiff is not entitled to seek judicial review of his 2012 FOIA

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request for failure to exhaust his administrative remedies because Plaintiff failed to pay the fees

required to process his request. (Def.’s Mem. at 9-10.) Plaintiff has not directly responded to this

argument, instead asserting that his administrative remedies were constructively exhausted

because “Defendant failed to meet a deadline that is mandated by the FOIA.” (Pl.’s Rep. at 5.) 

Regardless of whether Nelson has constructively exhausted his administrative remedies, however,

he is not entitled to judicial review. Plaintiff is statutorily obligated to pay all fees which the Army

is authorized to collect, and constructive exhaustion does not relieve him of this obligation. See

Goulding, 1998 WL 325202, at *9. Nelson acknowledges that he has not paid the processing fees

associated with his 2012 FOIA request, nor has he sought a fee waiver or any other

accommodation. Accordingly, Defendant is entitled to summary judgment on Count I as it relates

to Plaintiff’s 2012 FOIA request. 

III. APA Claim & Equitable Tolling (Counts II & III)

In addition to his FOIA-related claims, Plaintiff seeks review under the APA (Compl. ¶¶ 144-

155), and requests an “equitable tolling” of the statute of limitations “[r]egarding any action” brought

in the future by Plaintiff related to the Army’s activities at the TIC. (Compl. ¶¶ 156-161.) As the

issue of administrative exhaustion is not relevant to either of these claims, summary judgment on

Counts I and II is inappropriate at this time. The court notes, however, that both of these claims

present uphill battles for Plaintiff. First, under the APA, judicial review of an agency action is

appropriate only when “there is no other adequate remedy in a court.” 5 U.S.C. § 704. Here,

however, the FOIA provides an adequate remedy such that an APA claim seeking the compelled

disclosure of records is precluded. See Walsh v. U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 537-

538 (7th Cir. 2005). Second, equitable tolling as to hypothetical future actions would also be

improper, as the issue is not yet ripe for decision. See Piekarski v. Amedisys Ill., LLC, No. 12 C

7346, 2013 WL 2357536, at *3 (N.D. Ill. May 28, 2013) (denying request for equitable tolling as to

prospective plaintiffs because it did not present a case or controversy as required by Article III). 

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CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment [16] is granted in part

and denied in part. Defendant’s motion is granted as to Plaintiff’s claim regarding his 2007, 2009,

and 2012 FOIA requests. The claim relating to Plaintiff’s 2012 request is dismissed without

prejudice to renewal of this request upon payment of its associated processing costs. Defendant’s

motion is denied as to Plaintiff’s 2008 FOIA request. 

ENTER:

Dated: September 25, 2013 _________________________________________

REBECCA R. PALLMEYER

United States District Judge

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