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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2003 Decided October 3, 2003

No. 01-5161

PETER J. HIDALGO,

APPELLANT

v.

FEDERAL BUREAU OF INVESTIGATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv00709)

Goodwin Liu argued the cause for amicus curiae in support of the appellant. Walter E. Dellinger, appointed by the

court, was on brief.

Diane M. Sullivan, Assistant United States Attorney, argued the cause for the appellee. Roscoe C. Howard, Jr.,

United States Attorney, and R. Craig Lawrence, Assistant

United States Attorney, were on brief.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: GINSBURG, Chief Judge, and SENTELLE and

HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellant Peter Hidalgo, a federal inmate in Coleman, Florida, appeals the

district court’s summary judgment in favor of the government.1

 Hidalgo brought this action under the Freedom of

Information Act (FOIA), 5 U.S.C. §§ 552 et seq., to challenge

the denial by the Federal Bureau of Investigation (FBI) of

his FOIA request for information regarding a paid government informant. The district court held that the requested

information was exempt from disclosure under FOIA Exemption 6, 5 U.S.C. § 552(b)(6). Because Hidalgo did not appeal

the FBI’s denial to the Office of Information and Privacy

(OIP) of the United States Department of Justice (DOJ) as

required under the DOJ regulations, we conclude Hidalgo

failed to exhaust his administrative remedies and, accordingly, we vacate the district court’s summary judgment and

remand to the district court to dismiss the complaint for

failure to exhaust.

I.

On December 13, 1999 Hidalgo sent the FBI a request

seeking information regarding Manny Sanchez, who, he asserts, operated a marine service facility in Miami from 1989–

93 as a paid informant assisting the FBI to identify and

arrest narcotics smugglers.2

 Hidalgo’s FOIA request sought

an accounting of all payments made to Sanchez by any

government agency, a history of all of his convictions and

arrests, a list of all claims of misconduct against him while he

was an informant and any records related to his failure to pay

federal income taxes. On December 29, 1999 Hidalgo submit1 Although Hidalgo, appearing pro se before the district court, did

not enter an appearance before this Court, his interests were ably

represented by Amicus Curiae.

2 According to Amicus Curiae, Sanchez received somewhere between $440,000 and $1 million in government payments.
3

ted an ‘‘appeal from the denial of records by the F.B.I.’’ to the

OIP, the DOJ component designated to take FOIA appeals,

see 28 C.F.R. § 0.23a. The appeal asserted that the FBI had

‘‘exceeded the statutory time limits for providing the records

requested.’’ JA 39. In fact, however, the statutory 20–day

limit had not run as of that date. See 5 U.S.C.

§ 552(a)(6)(A)(I).3

On January 7, 2000 the FBI sent Hidalgo a timely response

denying the FOIA request and informing Hidalgo that he

needed either proof of Sanchez’s death or Sanchez’s privacy

waiver to obtain the requested information because ‘‘[s]uch

records, if they exist, are exempt from disclosure pursuant to

Exemptions (b)(6) and/or (b)(7)(C) of the FOIA.’’ JA 41.4

On February 8, 2000 the OIP (apparently unaware of the

FBI’s January 7, 2000 denial) responded to Hidalgo’s December 29, 1999 appeal, stating: ‘‘Although the [FOIA] authorizes

you to treat the failure of the FBI to act on your request

within the specified time limit as a denial thereof, [the OIP]

TTT cannot act until there has been an initial determination by

the [FBI].’’ JA 43.

On April 3, 2000 Hidalgo filed an action in the district court

challenging the FBI’s January 7, 2000 denial of his request.

3 The statutory limit was extended from 10 to 20 days in 1996.

See Electronic Freedom of Information Act Amendments of 1996,

Pub. L. No. 104–231, § 8(b), 110 Stat. 3048 (1996).

4 FOIA Exemption 6 and Exemption 7(C) exempt from disclosure:

matters that are—

TTT

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion

of personal privacy; [and]

(7) records or information compiled for law enforcement

purposes, but only to the extent that the production of such law

enforcement records or information TTT (C) could reasonably

be expected to constitute an unwarranted invasion of personal

privacyTTTT

5 U.S.C. § 552(b)(6), (7)(C).
4

See JA 6, ¶¶ 6, 8–9. The district court granted summary

judgment on March 16, 2001, on the ground that FOIA

Exemption 6 precluded disclosure of the information sought.

The court did not reach the government’s alternative ground

that the information is protected under FOIA Exemption 7(C)

and expressly rejected the government’s contention that the

action was barred by Hidalgo’s failure to exhaust his administrative remedies because he did not appeal the FBI’s denial

to the OIP. We review the district court’s summary judgment de novo. Nation Magazine v. United States Customs

Serv., 71 F.3d 885, 889 (D.C. Cir. 1995) (‘‘We review de novo a

district court’s grant of summary judgment in favor of an

agency which claims to have complied with FOIA.’’). Under

this standard we conclude the district court incorrectly decided the threshold issue of exhaustion. Hidalgo’s FOIA cause

of action should have been dismissed because he failed to

exhaust his administrative remedies, including appeal of the

FBI’s denial to the OIP.5

II.

‘‘Exhaustion of administrative remedies is generally required before filing suit in federal court 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.’’ Oglesby v. United States Dep’t of the Army, 920

F.2d 57, 61 (D.C. Cir. 1990) (citing McKart v. United States,

395 U.S. 185, 194 (1969)). It is true, as Amicus Curiae

asserts, that the exhaustion requirement is not jurisdictional

because the FOIA does not unequivocally make it so. See

I.A.M. Nat’l Pension Fund Ben. Plan C. v. Stockton TRI

Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984) (‘‘Only when

Congress states in clear, unequivocal terms that the judiciary

is barred from hearing an action until the administrative

agency has come to a decision TTT has the Supreme Court

held that exhaustion is a jurisdictional prerequisite.’’). Nonetheless, as a jurisprudential doctrine, failure to exhaust pre5 In light of this disposition, we do not reach the merits of the

FBI’s nondisclosure decision.
5

cludes judicial review if ‘‘the purposes of exhaustion’’ and the

‘‘particular administrative scheme’’ support such a bar.

Oglesby, 920 F.2d at 61. Both factors weigh against Hidalgo

here.

First, the FOIA’s administrative scheme favors treating

failure to exhaust as a bar to judicial review. The FOIA

expressly requires that an agency receiving a request for

information

(i) determine within 20 days (excepting Saturdays,

Sundays, and legal public holidays) after the receipt of

any such request whether to comply with such request

and shall immediately notify the person making such

request of such determination and the reasons therefor,

and of the right of such person to appeal to the head of

the agency any adverse determination; and

(ii) make a determination with respect to any appeal

within twenty days (excepting Saturdays, Sundays, and

legal public holidays) after the receipt of such appeal.

5 U.S.C. § 552(a)(6)(A)(i), (ii). If the denial of the request is

upheld on appeal, the agency must ‘‘notify the person making

such request of the provisions for judicial review of that

determination.’’ Id. § 552(a)(6)(A)(ii). As we have previously

concluded, this statutory scheme ‘‘requires each requestor to

exhaust administrative remedies.’’ Sinito v. United States

Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999) (citing

Oglesby, supra); see Oglesby, 920 F.2d at 61–62 (‘‘Courts

have consistently confirmed that the FOIA requires exhaustion of this appeal process before an individual may seek

relief in the courts.’’) (citing Dettmann v. United States Dep’t

of Justice, 802 F.2d 1472, 1477 (D.C. Cir. 1986)); Taylor v.

Appleton, 30 F.3d 1365, 1367–68 & n.3 (11th Cir. 1994)

(concluding that exhaustion, although not jurisdictional, is

‘‘condition precedent’’ to filing suit). Second, permitting Hidalgo to pursue judicial review without benefit of prior OIP

consideration would undercut ‘‘the purposes of exhaustion,

namely, ‘preventing premature interference with agency processes, TTT afford[ing] the parties and the courts the benefit

of [the agency’s] experience and expertise, TTT [or] com-
6

pil[ing] a record which is adequate for judicial review.’ ’’

Ryan v. Bentsen, 12 F.3d 245, 247 (D.C. Cir. 1993) (quoting

Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (alteration

original)).

Amicus Curiae asserts that Hidalgo should be deemed to

have exhausted his administrative remedies because his December 29, 1999 appeal was received by the OIP within 60

days of the FBI’s January 7, 2000 denial, the period for

appeal established by DOJ regulation, see 28 C.F.R. § 16.9(a),

and because the appeal ‘‘clearly satisfied the purposes of

exhaustion,’’ Reply Br. at 4. While Hidalgo’s appeal may

have been timely, in a literal sense, it did not promote the

purposes of the exhaustion doctrine. As Hidalgo pursued it

before the FBI acted on his request, the appeal could not and

did not place the substance of the FBI’s response before the

OIP. Thus, the OIP had no opportunity to consider the very

issues that Hidalgo has raised in court: whether the requested information is covered under FOIA Exemptions 6 and 7(C)

and whether the FBI provided an improper Glomar response.6

 In denying Hidalgo’s narrow and premature appeal,

the OIP expressly advised him of his options: ‘‘You may

appeal again to this Office when the [FBI] completes its

action on your request if any of the material is denied’’ or ‘‘In

the event that the FBI still has not responded to your request

at the time you receive this letter, you may, if you choose,

treat our letter as a denial of your appeal and bring action in

an appropriate federal court.’’ JA 43. Hidalgo did not heed

the OIP’s directive. To permit him to ignore the OIP’s

directive ‘‘would cut off the agency’s power to correct or

rethink initial misjudgments or errors,’’ Oglesby, 920 F.2d at

64, and frustrate the policies underlying the exhaustion requirement. See Dettmann, 802 F.2d at 1476 n.8 (applying

exhaustion requirement because ‘‘it would be both contrary to

6 A Glomar response ‘‘refus[es] to confirm or to deny the

existence of any records.’’ Oguaju v. United States, 288 F.3d 448,

450 (D.C. Cir. 2002) (citing Phillippi v. CIA, 546 F.2d 1009 (D.C.

Cir. 1976)). The FBI’s denial expressly advised: ‘‘This response

should not be considered an indication of whether or not records

responsive to your request exist in FBI files.’’ JA 41.
7

‘orderly procedure and good administration’ and unfair ‘to

those who are engaged in the tasks of administration’ to

decide an issue which the FBI never had a fair opportunity to

resolve prior to being ushered into litigation’’) (quoting United States v. Tucker Truck Lines, 344 U.S. 33, 36–37 (1952)).

For the foregoing reasons, the summary judgment of the

district court is vacated and the case is remanded with

instructions to the district court to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6) (‘‘failure to

state a claim upon which relief can be granted’’) for failure to

exhaust administrative remedies.

So ordered.