Monaghan v. Federal Bureau of Investigation

*597 MEMORANDUM **

Plaintiff-Appellant Adan Monaghan appeals the district court’s denial of his motion for summary judgment for a Freedom of Information Act (“FOIA”) fee waiver and the district court’s granting of Defendant-Appellant Federal Bureau of Investigation’s (“FBI”) motion to dismiss. We review both issues de novo, with review of the fee waiver decision limited to the administrative record before the agency. See 5 U.S.C. § 552 (a)(4)(A)(vii); Bankston v. White, 345 F.3d 768, 770 (9th Cir.2003); Friends of the Coast Fork v. United States Dep’t of the Interior, 110 F.3d 53 , 54 (9th Cir.1997). For the reasons that follow, the district court order of dismissal is affirmed.

A. The Record

As an initial matter, Monaghan incorrectly argues that the FBI’s untimely January 13, 2010 response letter is a “post hoc response” that should be stricken from the administrative record. An administrative record includes “the initial FOIA request, the agency’s response, and any subsequent materials related to the administrative appeal.” Forest Guardians v. United States Dep’t of the Interior, 416 F.3d 1173, 1177 (10th Cir.2005) (emphasis added). As many cases demonstrate, the fact that an…

dissenting:

I respectfully dissent.

First, the preclusion issue under 5 U.S.C. § 552 (a)(4)(A)(viii) was not waived. The statute’s fee preclusion provision is more limited than the broader waiver Monaghan originally sought when he moved for summary judgment, as it does not necessarily cover duplication costs. Compare § 552(a)(4)(A)(viii) with § 552(a)(4)(A)(iii). The preclusion argument was raised in response to the motion to dismiss, which was an appropriate time to raise it, as it was a defense to the Federal Bureau of Investigation’s (“FBI’s”) assertion that Monaghan had failed to exhaust by paying all the fees demanded — namely, the $864 in fees accrued as of January 2010.

The preclusion provision is directly applicable, as the FBI did not make a determination on Monaghan’s request, received on August 31, 2009, within twenty days, or notify Monaghan of an extension of that statutory deadline, as required under § 552(a)(6)(A)(i).

Moreover, as I read the “unusual circumstances” exception to the fee preclusion provision, it does not absolve the FBI of the obligation to inform FOIA reques-ters that the agency cannot comply with the application deadline because of unusual…

FILED

NOT FOR PUBLICATION JAN 28 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

AIDAN MONAGHAN, No. 11-16214

Plaintiff-Appellant, D.C. No. 2:09-cv-02199-JCM-

GWF

v.

FEDERAL BUREAU OF MEMORANDUM *

INVESTIGATION; DEPARTMENT OF

JUSTICE,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted November 9, 2012 San Francisco, California

Before: BERZON and KLEINFELD, Circuit Judges, and SMITH, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable William E. Smith, District Judge for the U.S. District Court for the District of Rhode Island, sitting by designation. Plaintiff-Appellant Aidan Monaghan appeals the district court’s denial of his

motion for summary judgment for a Freedom of Information Act (“FOIA”) fee waiver

and the district court’s granting of Defendant-Appellant Federal Bureau…