PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN J. COLEMAN, 

Plaintiff-Appellant,

v.  No. 11-1999

DRUG ENFORCEMENT

ADMINISTRATION,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(1:10-cv-00927-GBL-IDD)

Argued: March 19, 2013

Decided: May 2, 2013

Before TRAXLER, Chief Judge, and WILKINSON and

NIEMEYER, Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Traxler and

Judge Niemeyer joined.

COUNSEL

ARGUED: Daniel J. Stotter, STOTTER & ASSOCIATES

LLC, Corvallis, Oregon, for Appellant. David Moskowitz,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,

United States Attorney, Yiris Cornwall, Julie Edelstein, Assistant United States Attorneys, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

In February 2008, appellant John Coleman filed a Freedom

of Information Act ("FOIA") request with appellee Drug

Enforcement Administration ("DEA") for documents concerning the federal government’s regulation of the drug carisoprodol. Despite a statutory mandate requiring agencies to

respond to FOIA requests and appeals within twenty working

days, the DEA took more than sixteen months to respond to

Coleman’s request, eventually denying it for failure to prepay

the assessed processing fee. The Department of Justice’s

Office of Information Policy ("OIP") then took over seven

months to act on Coleman’s appeal of the DEA’s fee determination, ultimately remanding the request back to the DEA for

reconsideration. Coleman waited almost five more months for

subsequent DEA action. Finally, after nearly two and a half

years of pursuing his request through the administrative process to no avail, Coleman filed this action against the DEA

seeking production of the documents he originally requested.

Having exhausted the litigant, the DEA proceeded to argue

that it was Coleman who had failed to pay its fee request for

a preliminary search of documents and to exhaust his administrative remedies. The district court agreed and granted summary judgment to the DEA. We reverse. Because the DEA

violated its statutory deadline for responding to Coleman, we

hold that he has exhausted his administrative remedies in this

matter and remand the case for further proceedings consistent

with this opinion.

2 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
I.

Congress passed the Freedom of Information Act, 5 U.S.C.

§ 552, in 1966 "to establish a general philosophy of full

agency disclosure," S. Rep. No. 89-813, at 3 (1965), and "to

assure the availability of Government information necessary

to an informed electorate," H.R. Rep. No. 89-1497, at 12

(1966). The statute provides that, subject to certain enumerated exemptions for classified documents, agency personnel

and medical files, confidential financial information, and the

like, 5 U.S.C. § 552(b)(1)-(9), federal agencies generally must

make their internal records available to the public upon

request, id. § 552(a)(3)(A). As the Supreme Court has recognized, FOIA’s disclosure regime shines a light on government

operations "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).

Upon receipt of a request for records, an agency has twenty

working days to "determine . . . whether to comply with such

request and shall immediately notify the person making such

request of such determination and the reasons therefor." 5

U.S.C. § 552(a)(6)(A)(i). The twenty-day period may be

extended in "unusual circumstances," to wit, if the agency

must (1) "search for and collect the requested records from

field facilities"; (2) "search for, collect, and appropriately

examine a voluminous amount of separate and distinct records

which are demanded in a single request"; or (3) "consult[ ] . . .

with another agency having a substantial interest in the determination of the request." Id. § 552(a)(6)(B). If an agency

seeks to invoke the "unusual circumstances" extension, it

must send "written notice to the person making such request

setting forth the unusual circumstances for such extension and

the date on which a determination is expected to be dispatched." Id. § 552(a)(6)(B)(i). No extension for "unusual circumstances" is permissible without written notice to the

requester. If an agency seeks to extend the deadline by more

than ten working days, it must "provide the person an opporCOLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 3
tunity to limit the scope of the request so that it may be processed" more quickly. Id. § 552(a)(6)(b)(ii). At the time

Coleman filed his request, there was no other relevant mechanism for an agency to toll the twenty-day time limit.

To offset the cost of fulfilling document requests, FOIA

authorizes agencies to collect processing fees. Id. § 552(a)(4).

There are three basic types of fees: "search" fees to cover the

cost of agency personnel time spent locating the requested

documents, "review" fees to cover the cost of personnel time

spent determining whether any requested documents are

exempt from disclosure, and "duplication" fees to cover the

cost of actual duplication as well as any personnel time spent

in the duplication process. 28 C.F.R. § 16.11(b), (c). When

records are "requested for commercial use," an agency may,

in accord with its own regulations, assess search, review, and

duplication fees. 5 U.S.C. § 552(a)(4)(A)(ii)(I). When records

are "not sought for commercial use and the request is made

by an educational or noncommercial scientific institution . . .

or a representative of the news media," the agency may collect only duplication fees, not search or review fees. Id.

§ 552(a)(4)(A)(ii)(II). Any other requests for noncommercial

use are subject to both search and duplication fees, but not

review fees. Id. § 552(a)(4)(A)(ii)(III).

Notwithstanding the foregoing fee assessment criteria,

FOIA requests must be processed "without any charge or at

a charge reduced below" the agency’s established fee schedule "if disclosure of the information is in the public interest

because it is likely to contribute significantly to public understanding of the operations or activities of the government and

is not primarily in the commercial interest of the requester."

Id. § 552(a)(4)(A)(iii). If no fee waiver applies, an agency

may require prepayment before beginning to process a request

if "the agency has determined that the fee will exceed $250."

Id. § 552(a)(4)(A)(v). If the requester refuses to prepay these

fees, "the request shall not be considered received and further

4 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
work will not be done on it until the required payment is

received." 28 C.F.R. § 16.11(i)(4).

If a requester is not satisfied with an agency’s response to

a request, either because the requester disagrees with the fee

assessment or the agency has refused to provide all requested

documents that the requester believes are subject to disclosure

under FOIA, the requester may file an administrative appeal.

Id. § 552(a)(6)(A)(i). Pursuant to federal regulations, the OIP

handles all appeals from DOJ component organizations,

including the DEA. 28 C.F.R. § 16.9(a). FOIA requesters

have 60 days from the date of the DEA’s adverse decision to

appeal to the OIP. Id. By congressional mandate, the OIP has

twenty working days after receipt of the appeal to "make a

determination" on it. 5 U.S.C. § 552(a)(6)(A)(ii).

If a requester is not satisfied with the outcome of an administrative appeal, the requester may seek judicial review of any

adverse decision. On complaint by the requester, the district

court "has jurisdiction to enjoin the agency from withholding

agency records and to order the production of any agency

records improperly withheld from the complainant." Id.

§ 552(a)(4)(B). Before commencing litigation, a requester

must ordinarily exhaust administrative remedies by appealing

an issue through the FOIA administrative process following

an initial adverse determination by the agency. E.g., Wilbur v.

CIA, 355 F.3d 675, 676 (D.C. Cir. 2004) (per curiam); see

also 28 C.F.R. § 16.9(c). However, a requester "shall be

deemed to have exhausted his administrative remedies" and

may commence litigation immediately if "the agency fails to

comply with the applicable time limit provisions" of the FOIA

statute, 5 U.S.C. § 552(a)(6)(C)(i), so long as the agency has

not cured its violation by responding before the requester files

suit, Pollack v. Dep’t of Justice, 49 F.3d 115, 118 (4th Cir.

1995). This constructive exhaustion provision allows a

requester to break out of the administrative process and proceed directly to federal court in the face of an unresponsive

agency. If, during litigation, "the Government can show

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 5
exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may

retain jurisdiction and allow the agency additional time to

complete its review of the records." 5 U.S.C. § 552(a)(6)(C)(i).1

II.

The trek through the above administrative process began on

February 29, 2008, when Coleman, a researcher and author,

sent a FOIA request to the DEA seeking documents "regarding the scheduling of carisoprodol (trade name Soma(r)) pursuant to the Controlled Substances Act." J.A. 31. Coleman

offered to "reimburse the federal government all appropriate

costs in connection with the search and reproduction of the

requested records up to the sum of $1,000.00." Id.

The DEA received the request several days later on March

4, 2008. Pursuant to FOIA, the agency had twenty working

days to determine whether to comply with the request and

notify Coleman of that determination. See 5 U.S.C.

§ 552(a)(6)(A)(i). The twenty-day period expired on April 1,

2008, and no response or notice of unusual circumstances was

sent to Coleman by that date, placing the DEA in violation of

FOIA’s time-limit provisions.

On July 14, 2009—one year, four months, and ten days

after receiving Coleman’s request—the DEA denied the

request on the grounds that the "promise to pay fees of

1

In December 2007, Congress amended FOIA to provide that if an

agency needs additional information in order to fulfill a request or determine the requisite processing fee, the agency may contact the requester

and toll the twenty-day response period while awaiting a reply. OPEN

Government Act of 2007, Pub. L. 110-175, § 6(a)(1), 121 Stat. 2524, 2526

(2007) (codified at 5 U.S.C. § 552(a)(6)(A)). However, these provisions

did not take effect until December 31, 2008, id. § 6(a)(2), and are thus not

applicable to the request at issue here, which was filed on February 29,

2008. In any case, the DEA never contacted Coleman within the twentyday period to request additional information. 

6 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
$1,000.00 is insufficient to cover the cost of the search,

review and duplication." J.A. 33. The DEA stated that, as a

commercial requester, Coleman was responsible for search,

review, and duplication fees and, based on the initial request,

the cost of only the preliminary phase of the search was estimated at $1,780.75. The agency advised that it could not

begin processing the request until Coleman submitted an

advance payment of $1,640.00, which would cover most of

the agency’s estimate for the cost of the search.

Approximately two weeks later, on July 31, 2009, Coleman

appealed the fee assessment to the OIP. In his appeal, he

asserted that he was "not a commercial requester" but rather

"a researcher and an author who, in the past, has published

medical and scientific articles in professional journals and

books for which [he] neither sought nor received remuneration." J.A. 37. He indicated that he was "seeking this information as a non-commercial requester" and stated his intent "to

use the requested information as part of [his] research for a

book, journal article, or news report." Id. Coleman further

stated that he was, in fact, "eligible to request a fee waiver"

because (1) he was a "freelance journalist" and (2) disclosure

of the information he sought "is likely to contribute significantly to the public’s understanding of the operations of the

government with respect to how it enforces provisions of the

Controlled Substances Act." J.A. 38. Notwithstanding his initial promise to pay, Coleman formally requested a fee waiver

in light of the DEA’s "excessive delay in unlawfully denying

[him] access to the requested information." J.A. 37.

The OIP received the appeal on August 18, 2009. Pursuant

to FOIA, the OIP had twenty working days to act on it. See

5 U.S.C. § 552(a)(6)(A)(ii). The twenty-day period lapsed on

September 16, 2009. No decision on the appeal was communicated to Coleman by that date, placing the OIP, like the

DEA, in violation of the statutory time limit.

On March 29, 2010—seven months and eleven days after

receiving Coleman’s appeal—the OIP notified Coleman that

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 7
the DEA’s action on his initial request "was not consistent"

with the DEA’s own regulations concerning fee assessment.

J.A. 40 (citing 28 C.F.R. § 16.11(b)(1) (defining "commercial

use request"); id. § 16.11(e)). Without mandating a particular

final disposition, the OIP remanded the request to the DEA

for "reprocessing, including further consideration of [Coleman’s] fee category." J.A. 40. While FOIA itself does not

explicitly contemplate remands following administrative

appeals, DOJ regulations provide that a remanded request

"will be reprocessed in accordance with [the OIP] appeal

decision." 28 C.F.R. § 16.9(b). The OIP’s decision letter did

not indicate that Coleman had to take any additional action to

have his request reprocessed.

On April 22, 2010, Coleman resubmitted his FOIA request

directly to the DEA. He reiterated that he was not a commercial requester and proposed a settlement that "all fees for

search and duplication (‘review’ cost is no longer applicable)"

be waived, arguing in support of the proposal that he was "a

published author of academic and technical materials." J.A.

43. He also reasserted that "disclosure of the information

[sought in the request] is in the public interest because it is

likely to contribute significantly to the public’s understanding

of the operations of the government with respect to how it

enforces provisions of the Controlled Substances Act." J.A.

44.

After waiting approximately four more months for a

response from the DEA, Coleman commenced the instant

lawsuit pro se in the Eastern District of Virginia. He

recounted the history of his FOIA request—going back nearly

two-and-a-half years from the date he filed the complaint—

and sought judicial relief in the form of an order directing the

DEA "to provide immediate and full access to the requested

documents" with all fees waived "in view of excessive and

unlawful delay." J.A. 8-9. 

On September 29, 2010, just before filing an answer in this

litigation, the DEA took action on Coleman’s request, which

8 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
was still pending after the OIP remand six months earlier. The

DEA maintained its position that Coleman was a "commercial

requester" because he was affiliated with a for-profit firm that

offered consulting services to pharmaceutical companies

seeking government approval of their new drugs. The agency

also pointed to one of Coleman’s publications in which he

disclosed a "financial relationship with several drug manufacturers." J.A. 47. Finding that Coleman had a commercial

interest in the documents he sought, the DEA declined to

grant him either noncommercial fee status or a fee waiver. It

then rejected the FOIA request on the grounds that the search

fee alone would exhaust Coleman’s $1,000.00 commitment

many times over. The day after the DEA sent this letter, it

filed an answer and pointed to the reasoning in the letter as

justification for denying Coleman’s request.

Even as this litigation was pending, the parties continued

their discussions in the administrative process. On November

22, 2010, three months after Coleman filed his complaint, the

DEA sent additional correspondence "in further response to"

his request. J.A. 53. The agency reiterated its position that

Coleman was a commercial requester based on his involvement in pharmaceutical consulting and his past FOIA

requests, at least some of which were deemed commercial

without dispute. And once again, the agency denied the

request at issue here, arguing that the processing fees would

far exceed $1,000.00 regardless of whether Coleman were

deemed a commercial or noncommercial requester. The parties reached an impasse following Coleman’s final administrative correspondence, dated December 6, 2010, in which he

again explained his belief that he was entitled to both noncommercial fee status as well as a public interest fee waiver.

The DEA moved for summary judgment shortly thereafter.

The district court granted summary judgment in favor of

the DEA in March 2011, concluding that Coleman both failed

to exhaust his administrative remedies and failed to pay the

fee necessary to begin processing his request. With respect to

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 9
the exhaustion issue, the court found that Coleman "only

recently demanded a waiver of all fees associated with his

FOIA request in his December 6, 2010 letter" and had not yet

appealed the denial of the waiver to the OIP. J.A. 97. The district court also found that Coleman "refused to pay" the

DEA’s assessed processing fee before filing suit, providing a

second, independent grounds for summary judgment in favor

of the agency. J.A. 95-96. Coleman unsuccessfully moved the

district court to alter or amend its judgment, and this appeal

followed.

III.

We shall first address whether Coleman exhausted his

administrative remedies prior to filing the instant suit. As a

general matter, the concept of administrative exhaustion

makes good sense. It is far better for the requester and the

agency to reach a mutually satisfactory resolution on their

own without the need for federal judicial intervention. The

requirement that administrative remedies be exhausted saves

both agency and judicial resources and affords the requester

hope that a timely response to the request will be forthcoming. Congress recognized, however, that agencies may be

prone to resist the release of records, either because they

believe in good faith that production of the requested documents is not required or because they wish to spare themselves inconvenience or embarrassment. Without the prospect

of judicial intervention, therefore, the right of citizens to

examine the basic workings of their government would be

severely compromised. This is an especially troubling prospect at a time when the reach of government makes accountability important and the sheer size of government can render

its operations all but impenetrable.

Unfortunately this particular suit illustrates the frustration

of congressional hopes and the confirmation of congressional

fears. Given the extended and inexcusable agency delay Coleman faced while pursuing his FOIA request, we conclude that

10 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
he constructively exhausted his administrative remedies

before commencing this litigation. 

A.

A requester must ordinarily appeal the denial of a FOIA

request within the administrative process before proceeding to

federal court. E.g., Wilbur, 355 F.3d at 676; see also 28

C.F.R. § 16.9(c). However, to prevent agencies from keeping

requesters out of court by simply delaying the administrative

process ad infinitum, Congress provided that a requester will

be deemed to have exhausted his or her administrative remedies "if the agency fails to comply with the applicable time

limit provisions" laid out in FOIA. 5 U.S.C. § 552(a)(6)(C)(i).

Put simply, if an agency does not respond to a request within

twenty working days after receiving it, the requester may typically commence litigation. Citizens for Responsibility & Ethics in Wash. v. FEC, ___ F.3d ___, 2013 WL 1296289, at *1

(D.C. Cir. 2013). This court has flatly stated that even if a

request "may have been burdensome to the agency or would

have to be delayed because of other requests filed earlier," the

constructive exhaustion provision still applies. Pollack, 49

F.3d at 119. Here, the DEA’s inaction on remand triggered

constructive exhaustion of Coleman’s administrative remedies

and allowed him to proceed directly to court.

It is beyond question that both the DEA and the OIP failed

to comply with the applicable time limits that governed Coleman’s initial request and appeal. See 5 U.S.C. § 552(a)(6)(A).

Coleman first submitted his request on February 29, 2008,

and the DEA did not act on it for one year, four months, and

ten days following receipt—exceeding FOIA’s twenty-day

time limit many times over. Coleman appealed the decision

on July 31, 2009, and the OIP did not act on it for seven

months and eleven days following receipt—also exceeding

FOIA’s twenty-day time limit many times over. After each

agency exceeded its statutory deadline, Coleman was free to

seek judicial relief. See, e.g., id. § 552(a)(6)(C)(i); Citizens for

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 11
Responsibility, 2013 WL 1296289, at *1. However, before

this litigation began, the DEA eventually did respond to Coleman’s initial request, and the OIP eventually did act on his

appeal, thereby precluding him from relying on constructive

exhaustion with respect to those submissions. See Pollack, 49

F.3d at 118; see also Oglesby v. Dep’t of Army, 920 F.2d 57,

63 (D.C. Cir. 1990).

Notwithstanding these prior responses, when Coleman

commenced the instant litigation, he had been waiting for a

decision from the DEA on remand for nearly five months.

Although FOIA does not explicitly contemplate remands following administrative appeals, it is inconceivable that Congress intended to allow agencies to escape FOIA’s time limits

by sitting on remanded requests indefinitely. In setting a time

limit for agencies to respond to initial requests and establishing constructive exhaustion as a means to enforce that limit,

Congress expressed a clear intent to ensure that FOIA

requests receive prompt attention from the applicable agencies. A request upon remand is still a request, and we therefore conclude that it, too, must be acted upon within twenty

working days, pursuant to 5 U.S.C § 552(a)(6)(A)(i).

Whether the clock began ticking on the date the DEA

received the remand from the OIP or a few weeks later when

the agency received Coleman’s resubmitted request, the DEA

triggered a third FOIA violation by once again failing to provide Coleman with a timely response. The DEA did not cure

this violation because it did not respond before Coleman filed

the operative complaint here. It is true that the DEA

responded to Coleman’s request on remand before the agency

filed its answer but after Coleman filed his complaint. However, constructive exhaustion applies if an agency has

exceeded its statutory deadline, "unless the agency responds

to the request before suit is filed." Pollack, 49 F.3d at 118

(emphasis added). That the agency responded after the suit

began is thus of no moment. We therefore conclude that Cole12 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
man has constructively exhausted his administrative remedies

with respect to the claims made in his request upon remand.

B.

The DEA argues, however, that Coleman cannot rely on

constructive exhaustion here because, first, the agency

responded to Coleman’s initial request before he filed this

lawsuit, DEA Br. at 29, and second, even if Coleman constructively exhausted the claim that he was a noncommercial

requester, he did not exhaust the fee waiver claim because he

did not request a waiver until after this litigation had already

begun, id. at 30-32. We find both of these objections to be

without merit.

1.

The DEA asserts that once an agency responds to a request,

"constructive exhaustion is inapplicable and actual exhaustion

of administrative remedies is required," regardless of the

agency’s subsequent actions (or lack thereof). Id. at 29. But

that position does not square with the text of the statute. 

FOIA’s constructive exhaustion provision applies if an

agency "fails to comply with the applicable time limit provisions" of the statute. 5 U.S.C. § 552(a)(6)(C)(i) (emphasis

added). FOIA imposes two distinct time limits relevant here:

one for responding to requests, id. § 552(a)(6)(A)(i), and one

for responding to appeals, id. § 552(a)(6)(A)(ii). If an agency

timely responds to an initial request but fails to make a timely

determination with respect to the appeal of that request, it has

violated one of the two "applicable time limit provisions," and

constructive exhaustion can apply. Contrary to the DEA’s

position, the mere fact that an agency has responded to the

initial request does not make constructive exhaustion "inapplicable" given that subsequent agency inaction following the

initial response may mean that the agency has "fail[ed] to

comply with the applicable time limit provisions." 

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 13
Accordingly, an agency is not immune from the twenty-day

limit simply because it has already rejected a request once and

has been forced to reconsider it on remand. The DEA’s failure

to reprocess Coleman’s renewed request on remand in anything like a timely fashion violated the statutory time limit

and thus triggered constructive exhaustion, notwithstanding

the fact that the agency had already responded to the initial

request more than a year earlier. The irony of the DEA’s position is especially apparent here, where it contends that its

belated and dilatory initial response gives it a free pass for all

time.

2.

The DEA next contends that, even if Coleman exhausted

his claim that he was a noncommercial requester, he did not

exhaust his fee-waiver claim because he did not request a

waiver until after this litigation had commenced. While the

DEA may be correct that a plaintiff can exhaust administrative remedies with respect to one issue in a FOIA dispute but

not another, see Dettmann v. Dep’t of Justice, 802 F.2d 1472,

1477 (D.C. Cir. 1986), to conclude, as the district court did,

that Coleman exhausted his remedies only with respect to the

commercial/noncommercial distinction and not with respect

to the fee waiver question both chops this case too finely and

overlooks the substance of Coleman’s administrative correspondence.

Despite the DEA’s quibbles about exactly what Coleman

requested from the agency and when he did so, the administrative claims he raised regarding his eligibility for noncommercial fee status and his eligibility for a fee waiver all

address the same core question, namely how Coleman’s

request should be treated under FOIA’s fee assessment

scheme. The DEA would create a rule under which a FOIA

requester must make distinct arguments addressing every

individual component of an adverse fee determination before

obtaining judicial review of that determination. However,

14 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
holding an ordinary citizen seeking to learn about the basic

workings of a federal agency to such an exacting standard

would impose a burden not authorized by FOIA and would

frustrate the statute’s purpose of "assur[ing] the availability of

Government information necessary to an informed electorate." H.R. Rep. No. 89-1497, at 12. While a FOIA requester

cannot exhaust his administrative remedies with respect to an

issue if "not a word was said" about it, Dettmann, 802 F.2d

at 1476, a requester need not provide the agency with every

nuance and detail of a particular claim before exhaustion can

be found.

Even were we to require a FOIA requester to explicitly

challenge each and every component of an allegedly erroneous fee assessment, Coleman would still prevail because he

did, in fact, address both his noncommercial fee status and his

fee waiver eligibility. On July 31, 2009, Coleman sought OIP

review of what he described as (1) his "misidentification . . .

by DEA as a ‘commercial requester’" and (2) "DEA’s erroneous fee estimate used, in effect, to deny [his FOIA] request."

J.A. 37. He asked "that fees that otherwise might be required

to fulfill [his] request be waived in full because of the stated

errors and excessive delay in unlawfully denying [him] access

to the requested information." Id. Moreover, Coleman indicated that he was "eligible to request a fee waiver, either by

asserting that disclosure was in the public interest or that [he]

was entitled to a waiver in [his] capacity as a ‘freelance journalist.’" J.A. 38. These statements were before the DEA on

remand because the agency received Coleman’s OIP appeal

with the OIP’s remand decision.

Out of an abundance of caution, Coleman resubmitted his

request to the DEA following the remand, even though there

was no indication from the OIP that he needed to do so. In his

resubmission, he again indicated that he was a noncommercial

requester and was eligible for a fee waiver by virtue of his

status as "a published author of academic and technical mateCOLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 15
rials." J.A. 43. To support his assertions, he included a list of

nine published articles that he previously authored.

To be sure, requests for fee waivers must be made with

"reasonable specificity." Judicial Watch, Inc. v. Rossotti, 326

F.3d 1309, 1312 (D.C. Cir. 2003). The burden to request a fee

waiver is on the requester and the requester must make a

prima facie showing before the agency is obligated to consider the request. See Nat’l Treasury Employees Union v.

Griffin, 811 F.2d 644, 647 (D.C. Cir. 1987); 28 C.F.R.

§ 16.11(k)(5). We find that Coleman met these requirements

here. 

Notwithstanding the DEA’s arguments to the contrary,

Coleman made a claim for a fee waiver, albeit imperfectly, to

the agency twice: once indirectly, in his OIP appeal that was

sent to the DEA on remand, and once directly, in his formal

resubmission of his FOIA request. Because the DEA failed to

respond to the remanded request before this litigation began,

Coleman constructively exhausted his administrative remedies with respect to all issues contained in that request,

including his challenge to the assessed fee and the fee waiver

request subsumed within that challenge.

IV.

Having found that Coleman has fully exhausted his administrative remedies, we now turn to the DEA’s contention that

judicial review is also inappropriate because Coleman failed

to pay the $1,640.00 partial search fee assessed by the agency

in its letter of July 14, 2009. We reject the DEA’s position

because FOIA does not require any prepayment of processing

fees before a requester may proceed to court to dispute the

assessment of those very fees. Although it is true that the

$1,640 search fee was not itself in dispute, it was stated to be

part of the fees ultimately payable by a commercial requester,

which Coleman disputed and sought to challenge.

16 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
A.

FOIA explicitly contemplates judicial review of an agency’s denial of a fee waiver but makes no mention of any

requirement that a requester prepay an assessed fee before

proceeding to challenge that fee. See 5 U.S.C.

§ 552(a)(4)(A)(vii) ("In any action by a requester regarding

the waiver of fees under this section, the court shall determine

the matter de novo."). Were we to require Coleman to prepay

even a portion of the fee that he now challenges under FOIA,

we would be adding a requirement to the statutory directive

governing review of adverse fee decisions. Such an addition

would undermine the FOIA provision allowing de novo judicial review of an agency’s denial of a fee waiver, id., because

the added hurdle would prevent those who cannot assemble

the resources to prepay an assessed fee (including many of

those for whom Congress actually intended to provide a

waiver in the first place) from obtaining judicial review of an

agency’s erroneous fee assessment. Pollack rightly noted that

the constructive exhaustion provision does not "relieve [a

requester] of his statutory obligation to pay any and all fees

which the agency was authorized to collect," 49 F.3d at 119,

but determining the proper "fees which the agency was authorized to collect" is the whole point of these proceedings. Congress contemplated challenges to fee decisions, yet made no

mention of a prepayment requirement. We therefore decline

to frustrate FOIA’s judicial review provision by imposing

such a requirement.

B.

Contrary to the DEA’s position, our prior decision in Pollack does not compel a different outcome. In Pollack, this

court granted summary judgment in favor of an agency in the

face of a FOIA requester’s categorical refusal to pay any processing fees whatsoever. 49 F.3d at 119-20. However, Pollack

does not control the instant case because here Coleman has

never refused to pay any fee under any circumstances. Rather,

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 17
he has mounted a reasoned, substantive challenge to his particular fee assessment, and he is entitled to judicial review of

that assessment.

The Pollack court rejected the plaintiff’s contention that

"once an action is commenced in a Federal Court, a plaintiff

does not have to deposit any funds to see or obtain any of his

records that he may have requested." Id. at 118. At no time

did the plaintiff there contest the substance of the agency’s fee

assessment or request a bona fide fee waiver under FOIA. Id.

at 120. Rather, he simply asserted that no fee could be

demanded of him after he constructively exhausted his administrative remedies and brought suit under FOIA. Id. at 119-20.

By contrast, Coleman has substantively contested the DEA’s

fee assessment on multiple occasions and sought a fee waiver

under the applicable FOIA provisions. Coleman does not contend, as did the plaintiff in Pollack, that no fee is owed simply

because the DEA failed to respond to his request in a timely

manner. Rather, Coleman challenges the substance of the

agency’s fee assessment.2

2Although this court found that the Pollack plaintiff’s position was

unfounded at the time he presented it, intervening amendments to FOIA

have since given that position a basis in the law. In 2007, after finding that

the statute "has not always lived up to [its] ideals," OPEN Government

Act of 2007 § 2, Congress added a provision establishing that an agency

forfeits its right to collect some or all of the fees otherwise payable "if the

agency fails to comply with any time limit" applicable under FOIA, id.

§ 6(b)(1)(A) (codified at 5 U.S.C. § 552(a)(4)(A)(viii)); see also, e.g.,

Bensman v. Nat’l Park Serv., 806 F. Supp. 2d 31, 42 (D.D.C. 2011) (holding that an agency cannot assess FOIA processing fees if it has failed to

comply with the statutory time limit for responding to a request). This new

provision would have applied to Coleman’s request given the delay he

faced, but the amendments are effective only with respect to requests initially filed on or after December 31, 2008. See OPEN Government Act of

2007 § 6(b)(2). Nonetheless, the new provisions "underscore Congress’s

belief in the importance of the statutory time limit." Bensman, 806 F.

Supp. 2d at 38. 

18 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION
C.

We therefore conclude that, in accord with FOIA, Coleman

has exhausted his administrative remedies and properly

brought suit seeking production of the records included in his

initial request. See 5 U.S.C. § 552(a)(4)(B); 28 C.F.R.

§ 16.9(c). Given the DEA’s utter lack of due diligence in

responding to the request, as evidenced by repeated and

excessive delays, the dispute over any required fee is overripe

for judicial resolution. Coleman’s decision to challenge rather

than prepay the assessed fee poses no barrier to a decision on

the merits. He is now entitled to judicial review of the DEA’s

fee assessment. As such, we reverse the district court’s grant

of summary judgment and remand the case for further proceedings.

On remand, the district court must determine what fee

category—commercial or noncommercial—applies to the

request at issue and whether Coleman is eligible for a waiver

of any fees otherwise due—under either the public interest

provision or some other provision. In order to make this determination, the district court may need to clarify the scope of

the request. Once the court has reached a conclusion with

respect to the fee and scope issues, it must decide whether to

use its injunctive authority under FOIA to "order the production of any agency records improperly withheld from the

complainant." 5 U.S.C. § 552(a)(4)(B); see also id. § 552

(a)(6)(C)(i). We leave the exact sequence of resolving these

matters to the sound discretion of the district court. In the

exercise of that discretion, the court must be mindful that

stringing this case out will defeat any remaining semblance of

congressional intent. 

V.

FOIA is grounded in "the fundamental principle of public

access to Government documents." John Doe Agency v. John

Doe Corp., 493 U.S. 146, 151 (1989). The statute provides a

COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION 19
mechanism for citizens to obtain "official information long

shielded unnecessarily from public view and attempts to

create a judicially enforceable public right to secure such

information from possibly unwilling official hands." EPA v.

Mink, 410 U.S. 73, 80 (1973). Here, a citizen spent over two

years attempting to obtain documents from the DEA when

Congress gave the agency twenty working days to respond to

his request. Before filing suit, Coleman sent a request to the

DEA, appealed the DEA’s fee assessment to the OIP, prevailed on appeal, resubmitted the request, and waited another

four months for the DEA to act following remand. There was

simply no more administrative process left for him to pursue

with any reasonable expectation of agency response.

We do recognize that agencies face their own challenges in

implementing FOIA: the statute and its accompanying regulations are complex; the scope of the exemptions are open to

interpretation and dispute; the volume of requests is frequently heavy; and citizens themselves often submit vague

requests for voluminous materials. None of this, however,

excuses what happened here, namely the agency’s maintenance of complete and utter silence for periods vastly exceeding at every juncture the statute’s requirement of a prompt

response. Nowhere in FOIA did Congress contemplate government sitting on its hands for months at a time and doing

nothing. The time has come for Coleman to receive resolution

of his request of February 29, 2008. The district court’s grant

of summary judgment is therefore reversed and the case is

remanded for further proceedings consistent with this opinion.

On remand, the district court shall give due weight to the

cumulative delays that have transpired in this case and to the

importance of transparency in government.

REVERSED AND REMANDED

20 COLEMAN v. DRUG ENFORCEMENT ADMINISTRATION