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Solyndra Ruling

Solyndra Ruling

Page 1: Solyndra Ruling

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Number of Pages:7

Date Created:September 7, 2012

Date Uploaded to the Library:February 20, 2014

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UNITED STATES DISTRlCT COURT 
FOR THE DISTRICT COLUMBIA 

JUDICIAL WATCH, INC., 
Plaintiff, Civil Action No.: 11-2140 (RC) Document No.: 
U.S. DEPARTMENT ENERGY al., 
Defendants. 
MEMORANDUM OPINION 
DENYING WITIIOUT PREJUDICE DEFENDANT DEPARTMENT ENERGY'S MOTION FOR JUDGl'IENT THE PLEADINGS INTRODUCTION 
This matter comes before the court one defendant's motion for judgment the pleadings. 
The plaintiff not-for-profit organization that tiled requests for documents with the defendant 
government agencies, pursuant the Freedom oflnfonnation Act ("FOIA"), U.S.C.  552. 
According the plaintiff, the Department Energy ("defendant") has not fully produced responsive 
documents and thereby unlawfully withholding records. response, the defendant moves for 
judgment the pleadings under Federal Rule Civil Procedure 12( Because the court does not 
have sufficient infonnation resolve the exhaustion issue, the defendant's motion denied without 
prejudice. 
II. FACTUAL ALLEGATIONS PROCEDURAL BACKGROUND 
The plaintiff not-for-profit organization that sent the defendant FOIA request 
September 2011, seeking access records regarding Solyndra LLC and other entities. Compl. September 12, 2011, the defendant sent the plaintiff letter stating that the request had been 

When considering Rule 12(b)(6) motion dismiss, the court accepts true the plaintiff's version events. Ashcroft Iqbal, 556 U.S. 662, 678 (2009). 
assigned "controlled number," and that the defendant would send subsequent letter either infonning 
the plaintiff that further information was required, indicating that the request had been "assigned [in 
order] conduct search for responsive documents." Id. Def.'s Mot., Ex. 8.2 The following 
day, September 13, the plaintiff received second letter from the defendant, which said that the 
plaintiff's FOIA request had been assigned the defendant's Loan Program Office conduct search 
for responsive documents, and that upon completing the search and reviewing the resulting documents, final response would sent the plaintiff. Def. Mot., Ex. October 2011, the 
plaintiff received two compact discs containing records responsive its FOIA request, well 
letter stating that additional responsive documents existed and that they were being reviewed preparation for public release. Compl.  11. December 2011, the plaintiff brought suit against the defendant this court. The plaintiff 
asserts that the defendant has yet provide with full production documents, and that the 
defendant has failed comply with the statutory time limits send the plaintiff response regarding 
its request. Comp!. 10-11. response, the defendant has filed motion for judgment the 
pleadings, contending that the plaintiff has not exhausted its administrative remedies. See generally 
Def. Mot. The court now turns the parties' arguments and the applicable legal standards. 
III. ANALYSIS Legal Standard for Motion for Judgment the Pleadings 
Rule 12( the Federal Rules Civil Procedure provides that "[a]fter the pleadings are 
closed-but early enough not delay trial-a party may move for judgment the pleadings." FED. CIV. 12(c). The moving party must show that material issue fact remains solved and 
that entitled judgment matter law. Haynesworth Miller, 820 F.2d 1245, 1249 n.11 
Although the letters that the plaintiffs received fall outside the pleadings, the court can nonetheless consider them here because they are incorporated reference the complaint. Comp. 6-8; see MC/Commc'ns, Inc. FDIC, 808 Supp. 2d24, (D.D.C. 2011). 
(D.C. Cir. 1987), overruled other grounds Hartman Moore, 547 U.S. 250 (2006). When 
considering Rule 12(c) motion, the court wi11 accept true the allegations inthe non-moving party's 
pleadings, and will draw all reasonable inferences that party's favor. Haynesworth, 820 F.2d 1249 
n.11. 
The standard for reviewing motion for judgment the pleadings "virtually identical" that applied under Rule 12(b)(6). Id. 1254; see also FDIC, 755 Supp. 195, 199 (D.D.C. 2010) ("The analysis Rule 12(c) motion essentially the same that for motion dismiss under Rule 12(b)(6) for failure state claim upon which relief can granted."). "To survive Rule 12(b )(6)] motion dismiss, complaint must contain sufficient factual matter, accepted true, state claim relief that plausible its face." Ashcroft Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Bell Atl. Corp. Twombly, 550 U.S. 544, 562 (2007). claim 
facially plausible when the pleaded factual content "allows the court draw the reasonable inference 
that the defendant liable for the misconduct aUeged." Iqbal, 556 U.S. 678 (citing Twombly, 550 
U.S. 556). "The plausibility standard not akin 'probability requirement,' but asks for more than sheer possibility that defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. 556). Exhaustion Administrative Remedies Under the Freedom Information Act 
Exhaustion administrative remedies "required ... before party can seek judicial review" FOIA cases. Dettmann United States Dep't ofJustice, 802 F.2d 1472, 1477-78 (D.C. Cir. 1986); see also Hidalgo FBI, 344 F.3d 1256, 125859 (D.C. Cir. 2004) (per curiam). This requirement allows agencies the "opportunity exercise [their] discretion and expertise the matter and make factualrecord support [their] decision." Oglesby Dep the Army, 920 F.2d 57, (D.C. Cir. 
1990). addition, exhaustion enables the "top managers ofan agency correct mistakes made 
lower levels and thereby obviates unnecessary judicial review." Id. 
For FOIA cases, exhaustion governed the procedure that agency follows when 
responding infonnation request. The Freedom oflnfonnation Act requires that within twenty 
days receiving FOIA request, agency must make determination whether will comply with the request and must notify the requestor this determination. U.S.C.  552(a)(6)(A)(i); Judicial Watch Rossotti, 285 Supp. 17, (D.D.C. 2003). Specifically, the agency's response should include its "detetmination whether not comply with the request[.] the reasons for its decision[,]" and the decision adverse, notice the requestor's right "to appeal the head the agency." Oglesby, 920 F.2d 65. 
Given that framework, plaintiff can exhaust its administrative remedies either "actually" 
"constructively." Porter CIA, 579 Supp. 121, 126 (D.D.C. 2008) (citing Spannaus Dep't Justice, 824 F.2d 52, (D.C. Cir. 1987)). Actual exhaustion requires that once FOIA request has been denied, the plaintiff must ''utilize the administrative appeals process" before bringing suit. Rossotti, 285 Supp. 26. This process includes appealing the agency itself and awaiting its decision. Brnzon, 576 Supp. contrast, constructive exhaustion functions "[a]n exception the general rule requiring actual exhaustion.'' Id. the agency fails notify the requestor its determination within twenty days the request being filed, plaintiff"shall deemed have constructively exhausted [its] administrative remedies" and can file suit. Id. Yet the agency responds after the twentyday requirement, but before the plaintiff files suit, constructive 
exhaustion has not occurred and the plaintiff must use the administrative appeals process actually 
exhaust its administrative remedies. Id. 
The plaintiff asserts that has constructively exhausted its administrative remedies. Pl.'s Opp'n 5-6. contends that because the defendant has not completed its search for responsive records, the response that the defendant sent the plaintiff was "preliminary any determination 
comply with the request Id. Thus, the plaintiff contends, the defendant d1d not send its 
determination within the statutory twenty-day period, and the plaintiff has therefore constructively 
exhausted its administrative remedies. Id. The defendant counters that agency's response 

FOIA request need only include indication whether the agency intends comply, not complete 
production ofresponsive records. Def.'s Mot. 
After agency receives FOIA request, "[a]ll that required satisfy [the statute] this 
[CJ ircuit reply from the agency indicating that responding [the] request."' Love FBI, 660 Supp. 56, (D.D.C. 2009) (quoting Oglesby, 920 F.2d 61); Petit-Frere U.S. Attorney's 
Officefor SD. ofFla., 664 Supp. 69, (D.D.C. 2009). other words, the statute "only 
requires response FOIA request within the [twenty]-day period, not production the requested 
documents." Navistar, Inc. U.S. EPA, 2011WL37437 32, (D.D.C. Aug. 25, 2011); see also 
Citizensfor Responsibility and Ethics Washington Fed. Election Comm 'n, 839 Supp. 17, 
(D.D.C. 201 (stating that the statute "does not require the ... agency respond and produce 
responsive documents within twenty days order [necessitate actual] exhaustion administrative 
remedies,,). 
Here, the defendant sent the plaintiff two letters September, both within twenty days 
receiving the FOIA request. The letters stated that the request had been assigned conduct search 
for responsive documents. Def. Mot, Ex. 8-9.3 Because the defendant's subsequent October 
letter produced responsive information and withheld other information based FOIA exemptions, the 
court need not determine whether either the September letters constitute "adequate and timely 
responses ... for constructive exhaustion purpose.s." Oglesby, 920 F.2d 69. mentioned previously, agency sends the requestor response after the twenty-day 
period, but before the requestor files suit, constructive exhaustjon does not apply and the plaintiff must 
still actually exhaust its administrative remedies before bringing action court. Rossotti, 326 F.3d 1310; Petit-Frere, 664 Supp. 72. Because the defendant bere produced some responsive 
records October 2011, before the plaintiff brought suit December 2011, the defendant 
Although the letters that the plaintiffs received fall outside the pleadings, the cowt can nonetheless consider them here because they are incorporated reference the complaint. Compl.  6-8; see MCI Commc'ns, Inc. FDIC, 808 Supp. 24, (D.D.C. 2011). 
"cured" any alleged initial failure timely respond. Citizensfor Responsibility and Ethics 
Washington, 2011 6880679, *7. 
But the plaintiff contends that because the defendant's response failed notify the plaintiff 
its right administratively appeal the agency decision, constructive exhaustion has occurred. Pl. 
Opp'n The court not satisfied with the parties' scant briefing the issue ofwhether the 
October letter's failure include notice the right appeal makes the letter inadequate trigger 
the plaintiff's requirement file administrative appeal. Consequently, the court denies the 
defendant's motion for judgment the pleadings without prejudice refiling with further briefing this issue. 
IV. CONCLUSION 
For the foregoing reasons, the court denies the defendant's motion for judgment the 
pleadings without prejudice refiling with further briefing this issue. order consistent with 
this Memorandum Opinion issued this 31st day August, 2012. 
RUDOLPH CONTRERAS United States District Judge 
UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA 
JUDICIAL WATCH, INC., Plaintiff, 
Civil Action No.: 11-2140 (RC) Document No.: 
U.S. DEPARTMENT ENERGY al., Defendants. ORDER 
DENYING WITHOUT PREJUDICE DEFENDANT DEPARTMENT ENERGY'S MOTION FOR JUDGMENT THE PLEADINGS 
For the reasons stated the court's Memorandum Opinion separately and contemporaneously issued this 31st day August 2012, hereby ORDERED that the Department Energy's motion for judgment the pleadings 
DENIED WITHOUT PREJUDICE refiling with further briefing this issue. ORDERED. 
RUDOLPH CONTRERAS United States District Judge