9th Circuit FOIA Reply FBI Records

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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

________________________________________________________

Appeal No. 11-16214

________________________________________________________

AIDAN MONAGHAN,

Plaintiff-Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF JUSTICE,

Defendants-Appellees.

________________________________________________________

APPELLANT’S REPLY BRIEF

________________________________________________________

On Appeal from the United States District Court

for the District of Nevada

Hon. James C. Mahan

Case No. 09-cv-02199-JCM-GWF

DANIEL J. STOTTER (Oregon State Bar # 911090)

Stotter & Associates LLC

408 SW Monroe Ave, Ste L163

Corvallis, OR 97333

Tel. (541) 738-2601

Fax (541) 738 0611

[email protected]

Attorney for Plaintiff Appellant

mailto:[email protected]




TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. THE DISTRICT COURT ERRED BY DISMISSING APPELLANT’S

ACTION FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. THE DISTRICT COURT ERRED BY DENYING APPELLANT’S’ FEE

WAIVER REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15



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TABLE OF AUTHORITIES

CASES

Dettman v. Dept. of Justice, 802 F.2d 1472 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . 4

Friends of the Coast Fork v. Dept. Of Interior , 110 F.3d 53 (9 Cir. ‘97) 2, 11, 13th

Hidalgo v. FBI , 344 F.3d 1256 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Hymen v. Merit Systems Protection Board , 799 F.2d 1421 (9 Cir. 1986) . . . . . .th 3

In re: Steele, 799 F.2d 461(9 Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 3

Jeanes v. U. S. Department of Justice, 357 F. Supp. 2d 119 (D.D.C.2004) . . 5, 14

Judicial Watch, Inc. v. Rossotti,, 326 F.3d 1309 (D.C. Cir. 2003) . . . . . . . . . . . . 15

Kissinger v. Reporters Committee For Freedom of the Press, 445 U.S. 136, 153

(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Maydak v. U.S. Department of Justice, 254 F.Supp. 2d 23 (D.D.C. 2003) . . 5, 14

Pollack v. Department of Justice, 49 F.3d 115 (4 Cir. 1995) . . . . . . . . . . . .th 4,5, 14

Spannaus v. U.S. Dept. Of Justice, 824 F.2d 52 (D.C. Cir. 1987) . . . . . . . . . . . . . 4

Trueblood v. U.S. Department of Treasury, 943 F. Supp 64 (D.D.C. 1996) . 5, 14

Wildlands CPR v. U.S. Forest Service, 558 F.Supp.2d 1096 (D. Montana 2008) . 4

STATUTES

5 U.S.C. § 552(a)(4)(A)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10-11, 15



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5 U.S.C. § 552(a)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5 U.S.C. § 552(a)(6)(viii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8,9

5 U.S.C. § 552(a)(6)(C)(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 15

REGULATIONS AND RULES

28 CFR 16.211(3)-(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1



This case does not present circumstances where the non-payment of fees1

for any prior FOIA requests serve as the legal basis for the agency’s failure to

process Appellant’s August, 2009 FOIA request as suggested by Appellees. It isnot disputed that the past fees have been paid to the agency, see AOB at 16. n.13,

and although the agency’s FOIA regulations provide a discretionary option for

the agency to inform in advance a FOIA requester that it will require advance

payment to redress past FOIA request debts, see 28 CFR 16.211(3)-(4), it is

beyond dispute that the agency did not timely inform Appellant that they would

not process his August 2009 FOIA request, based upon any prior unresolved or

unpaid fee issues, until after he had filed his District Court action. Therefore, this

agency regulation, raised by the agency only after Monaghan filed this court

action, cannot be used to support a “failure to exhaust administrative remedies”

argument for this 2009 FOIA request. The agency’s regulations concerning past

fee debts clearly apply only after the agency have provided notice to the FOIA

requester per 28 CFR 16.211(3)-(4). Therefore, any issues concerning payment of

fees for Appellant’s prior FOIA requests have no bearing upon the processing of

Appellant’s August 2009 FOIA request at issue in this appeal.

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I. INTRODUCTION

This case presents two issues for appellate review: (1) whether the District

Court erred by holding that Plaintiff-Appellant Monaghan (“Appellant”) failed to

exhaust his administrative remedies for his August 2009 FOIA request, and, (2)

whether the District Court erred by denying Appellant’s public interest fee waiver

request for this August 2009 FOIA request. However, in their Answering Brief,

Appellees also repeatedly discuss Appellant’s prior FOIA requests, that simply have

no relevance or bearing upon the issues presented in this action for Appellant’s

August 2009 FOIA request.1



See Friends of the Coast Fork v. United States Dept. Of Interior , 110 F.3d2

53, 55 (9 Cir. 1997) (FOIA requester has initial burden of presenting prima facieth

support of a public interest fee waiver, after which the agency bears the burden of

refuting entitlement in the record of the agency’s administrative proceedings).

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On the issue of exhaustion of administrative remedies for the 2009 FOIA

request at issue in this appeal, Appellees are wrong, as a matter of law, in suggesting

that the District court could negate Appellant’s constructive exhaustion of

administrative remedie,s based upon subsequent agency actions and agency filing

after this case was filed. Once a requester has met the statutory requirements for

“constructive exhaustion of administrative remedies” provided by 5 U.S.C. §

552(a)(6)(C)(I) at the time their court action is filed, that party cannot lose their

status of having exhausted their administrative remedies after the court case is filed,

nor do they need to perform any further administrative actions for purposes of

“exhaustion of administrative remedies” as a matter of law. There is no basis for a

party to thereafter have their status of constructive exhaustion “negated” by any

subsequent agency actions or filings.

As to the second issue, Appellant Monaghan has met his primae facie burden2

of demonstrating entitlement to a public interest fee waiver for his August 2009

FOIA request in the administrative record before the agency. See AOB at 17-21.

Moreover, as judicial review of this issue is expressly limited to the administrative



See 5 U.S.C. § 552(a)(4)(A)(vii).3

Appellee argue that this Court’s prior rulings establish that failure to4

exhaust administrative remedies in a FOIA action is “jurisdictional” as opposed to being a “jurisprudential” requirement, and suggest there is a split of authority

between the D.C. Circuit and Ninth Circuit on this issue. See AAB at 10 n. 8.

However, the cases cited by Appellee do not support that argument. Neither

Hymen v. Merit Systems Protection Board , 799 F.2d 1421 (9 Cir. 1986), nor Inth

Re Steele, 799 F.2d 461 (1986) hold that “exhaustion of administrative remedies”

is jurisdictional for a FOIA action, as opposed to jurisprudential - those cases

merely state that exhaustion of administrative remedies is required. Cf . Hidalgo v.

FBI , 344 F.3d 1256, 1258 (D.C. Cir. 2003) (explaining why exhaustion is actually

jurisprudential in FOIA actions).

As noted in Appellant’s Opening Brief, the FOIA statute expressly allows5

a FOIA request to proceed directly with filing a FOIA court action, pursuant to 5

U.S.C. § 552(a)(6)(C)(I), without further administrative actions, if the agency

failed to meet their statutory deadline for responding to a FOIA request or

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record , it was legal error for the District Court to rely upon post hoc arguments and3

evidence presented by Appellee for the first time in the District Court proceedings to

deny Appellant’s public interest fee request. See AOB at 20-21.

II. The District Court Erred By Dismissing Appellant’s Action For Failure

To Exhaust Administrative Remedies

As discussed in Appellant’s Opening Brief, the District Court improperly

dismissed this action for alleged “failure to exhaust administrative remedies”

notwithstanding Appellant’s constructive exhaustion of administrative remedies

pursuant to the express language of the state. See AOB at 7-16. Appellees do not4

dispute the facts supporting “constructive exhaustion of administrative remedies ” at5



administrative appeal. See AOB at 9-10; see e.g. Spannaus v. U.S. Dept. Of

Justice, 824 F.2d 52, 58 (D.C. Cir. 1987); Pollack v. Department of Justice, 49

F.3d 115, 118-119 (4 Cir. 1995); Wildlands CPR v. United States Forest Service,th

558 F.Supp.2d 1096, 1102-1103 (D. Montana 2008).

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the time Monaghan filed his District Court action at issue in this appeal. Instead,

Appellees argue that the District Court properly negate Appellant’s constructive

exhaustion of administrative remedies based on new issues presented by the agency,

after he filed his court action. However, there is no authority supporting the District

Court and Appellee’s position that a party’s constructive exhaustion of

administrative remedies in a FOIA action can be negated or taken-away after the

filing of a court action.

The D.C. Circuit’s ruling in Dettman v. United States Dept. of Justice, 802

F.2d 1472 (D.C. Cir. 1986), relied upon by both the District Court, see ER 5-6, and

by Appellees on appeal, see AAB at 20, is not a “constructive exhaustion of

administrative remedies” FOIA case, and its discussion of finding only “partial

exhaustion” by a FOIA requester involved the distinguishable issue of an

administrative appeal which failed to include a substantive issue, that the FOIA

requester subsequently attempted to raised for the first time in judicial review of that

agency action. Id . at 1476-1477. That case clearly does not stand for the proposition

suggested by Appellees - that a Court can negate “constructive exhaustion of



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administrative remedies” by a FOIA requester in a FOIA action based on issues

raised for the first time by the agency in the court proceedings.

Appellee’s reliance upon Pollack in their Answering Brief for this position is

equally misplaced, see AAB at 21(citing Pollack v. United States Department of

Justice, 49 F.3d 115, 118-120 (4 Cir. 1995)), as that ruling actually rejectedth

Appellees argument that there was a failure to exhaust administrative remedies,

where there was “constructive exhaustion” pursuant to 5 U.S.C. § 552(a)(6)(C)(I).

Id at 118-119. In fact, in all of the cases referenced in the agency’s Answering Brief

in support of that argument, the Courts found lack of subject matter jurisdiction

only where the FOIA requester had both refused to pay their fees for the FOIA

request at issue in the action, and also failed to seek a public interest fee waiver, or

to otherwise provide any other basis at law to support non-payment of fees. See e.g.

Pollack v. United States Department of Justice, 49 F.3d at 120; Jeanes v. United

States Department of Justice, 357 F. Supp. 2d 119, 123 (D.D.C. 2004); Trueblood v.

United States Department of Treasury, 943 F. Supp 64, 68 (D.D.C. 1996); Maydak

v. United States Department of Justice, 254 F.Supp. 2d 23, 50 (D.D.C. 2003). The

Court’s dismissal of the court actions in each of these cases was ultimately based

upon FOIA requesters’ failure to seek a fee waiver and / or failure to pursue a fee

waiver in their administrative appeals. Id . However, as noted above, the basis for



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lack of subject matter jurisdiction in those cases does not apply to the case at hand,

where it is undisputed that Appellant expressly sought a seek a public interest fee

waiver, and in addition, provided an independent basis at law to support his legal

right to non-payment of fees for his August 2009 FOIA request. There are no

cases that provide for a dismissal based on failure to exhaust administrative remedies

under facts even remotely similar to the case at hand, involving constructive

exhaustion of administrative remedies, and Appellee’s argument was summarily

rejected by one recent district court decision from within this Circuit. See Wildlands

CPR v. United States Forest Service, 558 F.Supp.2d 1096, 1102-1103 (D. Montana

2008).

Although not essential for this Court’s resolution of the issue concerning the

dismissal of this action for alleged “failure to exhaust administrative remedies,” the

Appellee’s Answering Brief also extensively discusses FOIA’s fee preclusion

provision, 5 U.S.C. § 552(a)(6)(viii), regarding this issue, see AAB at 14-19, and

therefore, Appellant will respond to those arguments herein, to demonstrate that

there is no merit to the agency’s assertion that FOIA’s fee preclusion was in any

respect was “waived” by the Appellant, notwithstanding the fact that this provision

of FOIA issue cannot, as a matter of law, properly support the dismissal of



It is Appellant’s position that this fee preclusion provision applies6

automatically to the present FOIA request, as a matter of law, as a result of the

agency having missed its statutory deadlines, as further discussed herein.

However, in no respect can that provision of FOIA support the district court’s

dismissal of Appellant’s action for failure to exhaust administrative remedies, as

suggested by Appellees.

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Appellant’s FOIA action by the District Court in this action.6

First, it is undisputed that at the time Monaghan filed his August 2009 FOIA

request, he requested both (1) responsive records and (2) a public interest fee waiver,

see SER 06-07, and he could have no basis for asserting or discussing statutory fee

preclusion issues at that time - a records requester clearly cannot be expected to

anticipate or predict the agency’s subsequent failure to timely respond to a FOIA

request in the future.

Thereafter, when the agency failed to timely respond to his FOIA request,

Appellant filed an administrative appeal, challenging the agency’s failure to respond

to both his records request and fee waiver request, and again asserting his request for

responsive records and a public interest fee waiver. See SER 8-9, 13. As the agency

had not responded to his FOIA request, Appellant could not be expected to know

that the agency would not agree to abide by the non-discretionary statutory provision

of 5 U.S.C. § 552(a)(6)(viii), nor could he otherwise know if the agency planned to

grant his fee waiver request for all search fees and duplication costs for that FOIA



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request, thereby negating the need for the more limited fee preclusion provision, that

only applies to search fees (and not duplication costs). Therefore, Appellant had no

reason to assert a claim for the more limited statutory fee preclusion provision of 5

U.S.C. § 552(a)(6)(viii)in his administrative appeal to the agency, when he still

sought a broader fee waiver for this FOIA request.

Moreover, not only was it premature for Appellant to address the statutory fee

preclusion in his administrative appeal, but it is also significant to note that, unlike

the FOIA fee waiver provision, a FOIA requester is not required to request or be

“granted” a fee preclusion under 5 U.S.C. § 552(a)(6)(viii) based upon any agency

determination - that section of the FOIA statute is expressly automatic, per the

statutory language, upon the agency not meeting its deadline, and unlike a fee

waiver, does not have to be sought or “requested” from the agency. See 5 U.S.C. §

552(a)(6)(viii) (automatic fee preclusion provision); cf 5 U.S.C. § 552(a)(4)(A)(iii)

(requiring fee waiver request by requester). Therefore, Monaghan did not need to

address the fee preclusion provision within his administrative appeal.

When Appellant filed his Complaint, he continued to seek both the responsive

records for his August 2009 FOIA request, and a public interest fee waiver. See SER

01-04 (Complaint). However, it was still premature for Appellant to address fee

preclusion at that time, until the District Court had addressed a ruling on his broader



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public interest fee waiver claim as to both search fees and costs. Directly upon the

District Court’s Order denying Appellant’s fee waiver request, Monaghan (as a pro

se litigant) timely filed briefing to the Court below, expressly indicating in the

District Court proceedings that if he was not to receive a full fee waiver as to the

search fees and duplication costs for his August 2009 FOIA request, he was

nonetheless entitled to the automatic fee preclusion as to search fees per U.S.C. §

552(a)(6)(viii). See ER 19-21. Therefore, Appellant Monaghan has clearly not

“waived” his right to a waiver of search fees pursuant to 5 U.S.C. § 552(a)(6)(viii).

The District Court’s Order, and Appellee’s Answering Brief, also suggest that

FOIA’s “unusual circumstances” exception to this statutory provision should apply

to Appellant’s August 2009 FOIA request, based upon both the quantity of

responsive material and complexity of the subject matter of this FOIA request, to bar

application of the statutory fee preclusion provision. See ER 6 (District Court

Order), see also AAB at 17-19.

However, as noted in Appellant’s Opening Brief, the “unusual circumstances”

provision of FOIA does not apply in the present action, as that provision of FOIA

only allows for a limited 10 day extension of time for an agency to respond to a

request or appeal. See AOB at 15 (citing 5 U.S.C. § 552(a)(4)(B). In the present

action, it is beyond dispute that Appellees did not timely respond to Appellant’s



Moreover, since the agency never responded to Appellant’s August 20097

FOIA request prior to the filing of the instant action on November 17, 2009, it is

beyond dispute that the “unusual circumstances” provision of FOIA, which only

provides an additional ten days for an agency response, cannot be used as an

exception for the agency’s failure to timely respond to the initial FOIA request.

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administrative FOIA Appeal prior to his November 17, 2009 filing of the instant

action, even with the additional ten working day period authorized by 5 U.S.C. §

552(a)(4)(B). Appellant’s administrative appeal was received by the agency on

October 1, 2009. See ER 26 (Dec. Monaghan ¶ 5). This Court can take judicial

notice, by reference to the calendar for 2009, that Appellant’s filing of his federal

court action on November 17, 2009, was in fact after the additional ten working

days authorized for “unusual circumstances” - even when combined with the

statutory 20 working days authorized by FOIA for the agency to respond to

Appellant’s administrative appeal. See 5 U.S.C. § 552(a)(6)(A)(ii). Therefore, the

“unusual circumstances” provision of FOIA, 5 U.S.C. § 552(a)(4)(B), cannot be

employed to support to bar fee preclusion based upon the agency’s failure to timely

respond to Appellant’s administrative appeal.7

III. The District Court Erred in Denying Appellant’s’ Fee Waiver Request

As discussed in Appellant’s opening brief, based upon the administrative

record that was actually before the agency in the administrative proceedings (ie:

before the filing of the District Court action), Appellant has met his primae facie



See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d 53, 558

(9 Circuit 1997) (holding that once a FOIA requester presents a primae facieth

showing of entitlement to public interest fee waiver, the burden shifts to the

government agency to rebut the basis for granting a fee waiver by evidence

submitted within the administrative proceedings).

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burden of demonstrating entitlement to a public interest fee waiver pursuant to 58

U.S.C. § 552(a)(4)(A)(iii) for his August, 2009 FOIA request. See AOB at 18-20. It

is not disputed that the agency (Appellees) failed to timely submit any response to

dispute, or otherwise challenge, Appellant’s entitlement or eligibility for a public

interest fee waiver in the administrative proceedings. Therefore, the only issue

presented is whether Appellant has met his prima facie burden in addressing the

applicable fee waiver criteria in his FOIA request and in his administrative appeal to

the agency. See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d 53, 55

(9 Circuit 1997). Appellant has previously demonstrated that he has met his primath

facie burden in his opening brief for this appeal. See AOB at 18-20.

Although both parties to this appeal agree that judicial review of a FOIA

public interest fee waiver request is subject to de novo review, and is expressly

limited by the FOIA statute to the agency’s administrative record. See AOB at 16;

see also AAB at 10-11 (citing Friends of the Coast Fork v. U.S. Dept. Of Interior ,

110 F.3d 53, 54 (9 Cir. 1997), the parties disagree as to what constitutes theth

“administrative record” for that purpose in this action. Appellant’s position is that



Appellees also argues that the post hoc submissions by the agency must be9

considered because Monaghan, as a pro se litigant, initially (mistakenly)

“stipulated” to the agency’s filing of an “Administrative Record” prepared by

counsel for the government that included materials not actually before the agency

at the time of the agency’s administrative review of Appellant’s fee waiver issue.

SeeAAB at 12. However, as previously discussed in Appellant’s Opening Brief,

Monaghan subsequently informed the District Court of this error, indicating that

these supplemental materials were not actually part of the agency’s administrative

record in the District Court proceedings. See AOB at 20 n. 15; see e.g. ER 44-47,

ER 27-30. As appellate review of FOIA fee waiver issues is de novo, based upon

the actual administrative record, this Court should only consider the materials

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the administrative record is strictly limited to those matters that were actually before

the agency prior to the filing of Appellant Monaghan’s FOIA court action, see AOB

at 20-21, whereas Appellee FBI takes the position that the District Court (and this

Court on review) may properly consider anything that the agency has elected to add

to the “administrative record” at any time - even after the present court case was filed

by Appellant Monaghan, at a time when his FOIA fee waiver request determination

was already before the court, and no longer subject to further agency review. See

AAB at 12-14.

Appellees do not dispute that the District Court’s Order relied extensively

upon evidence submitted by the agency for the first time on January 13, 2010, see

ER 50-53 (Court Order on Fee Waiver), see also ER 63-65(agency’s January 13,

2010 fee waiver response), after Monaghan had already filed his District Court

action, for its fee waiver determination. Appellees argue that the agency can9



actually before the agency in the administrative proceedings, notwithstanding a

pro se litigant’s mistake in stipulating to the agency’s filing, particularly where

this error was presented to the District Court in the proceedings below. Id .

This Court has previously rejected Appellee’s position, holding that this10

judicial review limitation applies equally to the agency’s position opposing a fee

waiver, as well as the evidence presented in support of a fee waiver presented by a

FOIA requester. See Friends of the Coast Fork v. U.S. Dept. Of Interior , 110 F.3d

53, 55 (9 Cir. 1997). th

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continue to develop or add to the administrative record in a fee waiver review action,

even after the FOIA court action has been filed, for judicial review of FOIA public

interest fee waiver determinations. See AAB at 12-14. However, none of the cases

cited by Appellees as to this issue actually support the agency’s position that the

“administrative record” in a FOIA fee waiver action can be created or otherwise

enlarged by either party after a Court case has been filed, and it is clear that this

argument is entirely at odds with the express language and purpose of the limitation

as to FOIA fee waiver matters requiring judicial review to be “limited to the record

before the agency. ” See 5 U.S.C. § 552(a)(4)(A)(vii).10

For example, Appellee’s reference to the Supreme Court’s decision in

Kissinger for this issue is entirely misplaced. See e.g. AAB at 11 (citing Kissinger v.

Reporters Committee For Freedom of the Press, 445 U.S. 136, 153 (1980). That

decision does not in any respect pertain to, nor otherwise discuss the scope of the

proper “administrative record” for judicial review in a FOIA fee waiver action. Id .



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Nor does Appellee’s reliance on the Jarvik decision from the District of Columbia

support Appellees’ position on this issue. See AAB at 12 (citing Jarvick v. Central

Intelligence Agency, 495 F.Supp. 2d 67, 71 (D.D.C. 2007). Although the quoted

portion of this case is an accurate statement of law, that decision does not in any

respect hold (or even suggest) that an agency can add additional materials to the

“administrative record” after a court case has already been filed, in the context of

judicial review of a FOIA fee waiver issue, as currently suggested by Appellees. See

AAB at 13-14.

In fact, neither Pollack v. Department of Justice, 49 F.3d 115, 118-119 (4th

Cir. 1995); nor Jeanes v. United States Department of Justice, 357 F. Supp. 2d

(D.D.C. 2004), nor Maydak v. United States Department of Justice, 254 F.Supp. 2d

23 (D.D.C. 2003), nor Trueblood v. United States Department of Treasury, 943 F.

Supp 64 (D.D.C. 1996), are even public interest fee waiver cases, nor in any

respect stand for the proposition suggested by the agency, that a Court can consider

new materials submitted for the first time by the agency as a component of the

“administrative record” in a FOIA fee waiver review action. See AAB at 13-14.

As noted above, Appellant has clearly met his primae facie burden of

describing, with ”reasonable specificity,” the public interest benefits of disclosure of

the agency records at issue in his FOIA request, and such “reasonable specificity” is



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“all that FOIA requires,” see Rossotti, 326 F.3d at 131, particularly where there is

undisputed evidence of a significant public interest in the subject matter of the

request, see ER 93, 95, and where there is an undisputed showing of a public

interest fee waiver by a non-commercial FOIA requester. Id . Therefore, Appellant

has demonstrated entitlement to a public interest fee waiver for this FOIA request,

and the District Court erred in denying his fee waiver request as a matter of law.

IV. CONCLUSION

Therefore, for all of the reasons set forth above, this Court should reverse the

District Court’s dismissal of this action by finding that Appellant has constructively

exhausted his administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(I), and

reverse the District Court’s holding as to Appellant’s entitlement to a public interest

fee waiver request for his August, 2009 FOIA request pursuant to 5 U.S.C. §

552(a)(4)(A)(iii) based upon the administrative record presented before the agency.

Respectfully Submitted,

/s/ Daniel J. Stotter Date: December 12, 2011

Daniel J. Stotter, OR # 911090

STOTTER & ASSOCIATES LLC

408 SW Monroe Ave, Ste L 163

Corvallis, OR 97333Tel. (541) 738-2601

[email protected]





STATEMENT OF RELATED CASES

Appellant’s Counsel is unaware of any related cases or appeals.

/s/ Daniel J. Stotter Date: December 12, 2011Daniel J. Stotter, OR # 911090

CERTIFICATE OF COMPLIANCE

I, Daniel J. Stotter, hereby certify that this brief conforms with the applicable

requirements for page length and other brief filing requirements as set forth by the

Federal Rules of Appellate Procedure , and by Ninth Circuit Rules, and the

undersigned counsel hereby certifies that all fonts used in this brief are

proportionally spaced, with a typeface of 14 points, and that this document contains

4524 words based upon the result provided by using the word count function of

Word Perfect (Version 12).

/s/ Daniel J. Stotter Date: December 12, 2011Daniel J. Stotter, OR # 911090



CERTIFICATE OF SERVICE

All Case Participants Registered for the Appellate CM/ECF System

I certify that on December 12, 2011, I electronically filed APPELLANT’S

REPLY BRIEF with the Clerk of the Court for the United States Court of Appeals

for the Ninth Circuit by using the appellate CM/ECF system. I certify that all

participants in the case are registered CM/ECF users, and that service of this Appeal

Brief will be accomplished by the appellate CM/ECF system.

Executed December 12, 2011 in Corvallis, Oregon.

/s/ Daniel J. Stotter

Daniel J. Stotter, OR # 911090

STOTTER & ASSOCIATES LLC

408 SW Monroe Ave, Ste L 163

Corvallis, OR 97333

Tel. (541) 738-2601

[email protected] for Appellant Aidan Monaghan



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