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					   Case: 11-16214   09/06/2011   ID: 7883647   DktEntry: 10   Page: 1 of 30




                UNITED STATES COURT OF APPEALS
                     FOR THE NINTH CIRCUIT
________________________________________________________

                        Appeal No. 11-16214
________________________________________________________

                          AIDAN MONAGHAN,

                            Plaintiff-Appellant,

                                     v.

 FEDERAL BUREAU OF INVESTIGATION; DEPARTMENT OF JUSTICE,

                        Defendants-Appellees.
________________________________________________________

                  APPELLANT’S OPENING 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
dstotter@qwestoffice.net
Attorney for Plaintiff Appellant
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                                     TABLE OF CONTENTS

I. STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The District Court Erred By Dismissing This Action For Failure To
Exhaust Administrative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Appellant Constructively Exhausted His Administrative Remedies . . . . 8

2. Appellant Is Not Required To Pay Search Fees For This FOIA Request 12


B. The District Court Erred in Denying Appellant’s’ Fee Waiver Request 17

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VIII. STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . 25

IX. CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

X. CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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                                 TABLE OF AUTHORITIES

                                                CASES

Bankston v. White, 345 F.3d 768 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Camp v. Pitts, 411 U.S. 138 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Charles v. Garrett, 12 F.3d 870 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dettman v. Dept. of Justice, 802 F.2d 1472 (D.C. Cir. 1986) . . . . . . . . . . . . . . . 15

Friends of the Coast Fork v. Dept. Of Interior, 110 F.3d 53 (9th Cir. ‘97) 16, 18, 21

Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

Inst. For 8 Prot. v. U.S. Fish & Wildlife Serv., 290 F.Supp. 2d 1226 (D. Or 2003) 18

Judicial Watch, Inc. v. Rossotti,, 326 F.3d 1309 (D.C. Cir. 2003) . . . . . . . . . 17, 23

Larson v. CIA, 843 F.2d 1481 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282(9th Cir 19871
                                                                              )7

Vehicle Mfrs’ Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) . . . . 21

Ogelsby v. Dept. of Army, 920 F.2d 57(D.C. Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 9

Pollack v. Department of Justice, 49 F.3d 115 (4th Cir. 1995) . . . . . . . . . . . . . 9, 10

Spannaus v. U.S. Dept. Of Justice, 824 F.2d 52 (D.C. Cir. 1987) . . . . . . . . . . . . . 9

Wildlands CPR v. U.S. Forest Service, 558 F.Supp.2d 1096 (D. Montana 2008) . . 9



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                                                   STATUTES

5 U.S.C. § 552(a)(4)(A)(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7, 11, 17, 24

5 U.S.C. § 552(a)(4)(A)(viii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 12, 13, 15

5 U.S.C. § 552(a)(4)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 8, 13, 16

5 U.S.C. § 552(a)(4)©) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5 U.S.C. § 552(a)(6)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

5 U.S.C. § 552(a)(6)(A)(I) - (ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

5 U.S.C. § 552(a)(6)(C)(I). . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 6, 8, 9, 10, 11, 12, 23

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1346(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

                                     REGULATIONS AND RULES

Fed.R.Civ. Proc. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed.. R. App. Proc. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




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                      I. STATEMENT OF JURISDICTION

                           A. District Court Jurisdiction

      The District Court had jurisdiction of this case pursuant to 28 U.S.C. § 1331

(Federal Question) and 28 U.S.C. § 1346(a)(2) (civil action against the United

States). See ER 87-100 (Amended Complaint). Federal question jurisdiction in this

action is predicated upon claims arising under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552(a)(4)(B). Id.


                         B. Court of Appeals Jurisdiction

      This Court has jurisdiction of this appeal from a final Order and Judgment

pursuant to 28 U.S.C. § 1291. The final Order and Judgment of March 17, 2011,

underlying this appeal, disposed of all claims with respect to all parties, and is a

final appealable Judgment pursuant to Fed.R.Civ. Proc. 54. See ER 4-6 (Order

Granting Motion To Dismiss); see also ER 3 (Judgment).


                              C. Timeliness of Appeal

      Appellant timely filed his Notice of Appeal on May 12, 2011, see ER 1,

within 60 days after entry of Judgment, pursuant to Fed.. R. App. Proc. 4(a)(1)(B).




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                     II. ISSUES PRESENTED FOR REVIEW

      The issues presented for review are:

      1. Did the District Court err by dismissing this action for failure to exhaust

administrative remedies, when Appellant had constructively exhausted his

administrative remedies pursuant 5 U.S.C. § 552(a)(6)(C)(I)?

      2. Did the District Court err in denying Appellant’s 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 of Appellant’s FOIA request and

administrative appeal?

                         III. STATEMENT OF THE CASE

      This is an appeal of a civil action arising under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), seeking injunctive relief to redress the

FBI’s failure to provide Appellant Monaghan with any responsive records to his

August, 2009 FOIA request to the FBI Headquarters, seeking several specified

categories of agency records regarding the agency’s investigation of the terrorist

attacks occurring on September 11, 2001. See ER 87-100 (Amended Complaint);

see also ER 92-93 (Appellant’s FOIA request).




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                           Procedural History of Case

      On November 17, 2009, Appellant Monaghan filed his Complaint to

commence this FOIA action in the United States District Court for the District of

Nevada (Court Doc 1).1 On November 20, 2011, Appellant filed an Amended

Complaint. ER 87-100 (Court Doc 5).

      On January 19, 2010, Defendant Department of Justice, Federal Bureau of

Investigation (hereinafter “FBI”)) filed an Answer to Appellant’s Amended

Complaint. ER 82-86 (Court Doc. 8).

      On April 2, 2010, the District Court issued a scheduling order to bifurcate the

proceedings to first review Appellant’s FOIA fee waiver issues, and to thereafter

review any remaining issues in this action. (Court Doc. 16).

      On April 22 2010 Plaintiff filed a Motion for Summary Judgment as to FOIA

fee waiver issues. (Court Doc. 19). On May 17, 2010, the FBI filed a response to

Plaintiff’s Motion for Summary Judgment as to fee waiver issues. (Court Doc. 22).

On June 17, 2010, the District Court entered an Order denying Plaintiff’s Motion for

Summary Judgment on FOIA Fee waiver issues. ER 50-53 (Court Doc. 27).

      On October 14, 2010, Defendant FBI filed a Motion To Dismiss, or in the



      1
         Appellant Monaghan prosecuted this action in the District Court as a pro
se litigant. See ER 87-100 (Amended Complaint; see also ER 101 (Civil Docket).
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Alternative for Summary Judgment. (Court Doc. 31). On December 6, 2010,

Plaintiff filed his Response To Motion for Motion To Dismiss, or in the Alternative

for Summary Judgment, ER 7-33 (Court Doc 38), and also filed a Motion for

Summary Judgment (Court Doc. 35), and a Motion To Reconsider the Court’s June

17, 2010 Order.2 ER 34-49 (Court Doc. 36).

      On January 6, 2011, Defendant FBI filed a Reply in support of its Motion To

Dismiss, or in the Alternative for Summary Judgment (Court Doc 45). On January

13, 2011, Defendant FBI filed a Response to Plaintiff’s Motion to Reconsider

(Court Doc 45). On January 20, 2011, Defendant FBI filed a Response to

Appellant’s Motion for Summary Judgment. (Court Doc 47).

      On January 24, 2011, Appellant filed a Reply in support of his Motion To

Reconsider (Court Doc 47). On February 10, 2011, Appellant filed a Reply in

support of his Summary Judgment (Court Doc 51).

      On March 16, 2011, the District Court issued an Order granting Defendant

FBI’s Motion To Dismiss. ER 4-6 (Court Doc. 52).



      2
         On December 6, 2010, Appellant Monaghan filed a combined “Motion
for Summary Judgment, and for Reconsideration of FOIA Fee Waiver Ruling,” see
ER 34-59, which was entered by the District Court as two separate (but otherwise
identical) filings, identified in the civil docket as a Motion for Summary Judgment
(Court Doc 35) and a Motion for District Court To Reconsider (Court Doc. 36).
See ER 105 (Civil Docket).
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      On March 17, 2011, a Judgment was entered in favor of Defendants and

against Plaintiff Monaghan. ER 3 (Court Doc. 53).

      On May 12, 2011, Appellant Monaghan filed a Notice of Appeal. ER 1

(Court Doc. 54).

                           IV. STATEMENT OF FACTS

      In August, 2009, Appellant Aidan Monaghan submitted a Freedom of

Information Act (“FOIA”) request to the Federal Bureau of Investigation (“FBI”)

Records Information / Dissemination Section in Winchester, Virginia, seeking eight

categories of records pertaining to the FBI’s investigation of the terrorist attacks of

September 11, 2001, see ER 92-93 (FOIA Request), which was received by the FBI

on August 31, 2009. See ER 25 (Dec. Monaghan ¶¶ 2-3). Appellant’s records

request expressly sought a FOIA public interest fee waiver pursuant to 5 U.S.C. §

552(a)(4)(A)(iii), and provided facts demonstrating that this request was in the

public interest, would significantly contribute to the public’s understanding of

government activities, and establishing that there was no commercial interest by the

requester in seeking these agency records. ER 92-93.

      After receiving no response from the FBI to his August, 2009 FOIA request,

Appellant filed an administrative appeal to the Department of Justice’s Office of

Information and Privacy on September 29, 2009, objecting to the FBI’s failure to

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respond to his records request, and providing additional support for granting a

public interest fee waiver. See ER 94-95 (administrative appeal); see also ER 25

(Dec. Monaghan ¶ 4). This administrative appeal was received by the Department of

Justice on October 1, 2009. See ER 25 (Dec. Monaghan ¶ 5).

      Prior to filing his this court action on November 17, 2011, Appellant did not

receive any response from the FBI for his August 2009 FOIA request, nor did he

receive any response from the Department of Justice as to his September 29, 2009,

FOIA administrative appeal at any time prior to filing this action. See ER 26 (Dec.

Monaghan ¶ 6-7).

                       V. SUMMARY OF ARGUMENTS

      1. The Court below erred in dismissing Appellant’s civil action on the

grounds of alleged “failure to exhaust administrative remedies” in that Appellant

had constructively exhausted his administrative remedies pursuant to the statutory

exhaustion provision of FOIA, 5 U.S.C. § 552(a)(6)(C)(I). Moreover, the District

Court’s finding that dismissal was appropriate on the grounds that Appellant had

not paid search fees for this FOIA request was error. Appellant was not required to

pay search fees by application of 5 U.S.C. § 552(a)(4)(A)(viii), which prohibits an

agency from assessing any search fees if the agency has not timely processed a

FOIA request or appeal within the statutory time frames required by FOIA.

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       2. The District Court also erred by denying Appellant’s request for a public

interest fee waiver pursuant to 5 U.S.C. § 552(a)(4)(A)(iii) based upon the

administrative record of Appellant’s FOIA request and his administrative appeal,

demonstrating that this request was likely to contribute significantly to public

understanding of the operations and activities of government, and has no

commercial interests for the FOIA request at issue.

                                  VI. ARGUMENT

A.     The District Court Erred By Dismissing This Action For Failure To
       Exhaust Administrative Remedies

                                 Standard of Review

       This Court reviews whether a Plaintiff has exhausted their administrative

remedies before filing suit as a question of law, which is reviewed de novo. See e.g.

Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003); see also Charles v. Garrett, 12

F.3d 870, 873 (9th Cir. 1993).

             1. Appellant Constructively Exhausted His Administrative Remedies

       The District Court, in the proceedings below, dismissed Appellant’s FOIA

action on the basis that the court allegedly lacked jurisdiction3 for “failure to

       3
         Although in dismissing this action, the District Court asserted “lack of
jurisdiction” on the basis of Appellant’s alleged failure to exhaust administrative
remedies, see ER 6 (District Court Order), exhaustion of administrative remedies
in a FOIA action are not jurisdictional, see e.g. Hidalgo v. FBI, 344 F.3d 1256,
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exhaust administrative remedies.” ER 6 (District Court Order).

       However, the District Court erred in reaching that conclusion, as the

undisputed facts in this action demonstrate that, prior to filing this action,

Appellant Monaghan had constructively exhausted his administrative remedies

pursuant to the express statutory language of FOIA. See 5 U.S.C. § 552(a)(6)(C)(I),4

see e.g. ER 24- 26 (Dec. Monaghan ¶¶ 2 - 6). It is not disputed that the agency did

not timely respond to Appellant’s August, 2009 FOIA request, or Appellant’s

September 2009 FOIA Appeal, within twenty working days (excluding Saturdays,

Sundays and legal public holidays) as required by FOIA. See 5 U.S.C. §

552(a)(6)(A)(I) - (ii).5


1258 (D.C. Cir. 2003), and is more properly evaluated as a statutory condition
precedent requirement, based upon the applicable language of the statute. Id at
1258-1259. Therefore, it is important to note that the FOIA statute itself expressly
provided for “constructive” exhaustion of administrative remedies as meeting the
Act’s administrative exhaustion requirement. See 5 U.S.C. § 552(a)(6)(C)(i).
       4
        FOIA expressly provides that a person shall be deemed to have exhausted
their administrative remedies if the agency fails to comply with the applicable time
limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See 5 U.S.C. §
552(a)(6)(C)(I). The FOIA statute also provides that any person who has not been
provided the records requested pursuant to FOIA may, after exhausting their
administrative remedies, seek legal redress from the federal district court to
“enjoin the agency from withholding agency records and to order agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B).
       5
        The agency did not ever provide Appellant with notice that it required
extensions of time in responding to his FOIA request or his appeal, as expressly
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      It is clear from the administrative record that there was no timely agency

response to either Appellant’s FOIA request, or to his administrative appeal until

after Appellant had constructively exhausted his administrative remedies for this

action pursuant to 5 U.S.C. § 552(a)(6)(C)(I), and filed the instant action.6 See ER

24- 26 (Dec. Monaghan ¶¶ 2 - 6)

      Although the Court below was correct in observing that a FOIA requester

has a duty to exhaust their administrative remedies before filing a suit to obtain

agency records, see e.g. In re: Steele, 799 F.2d 461, 465 (9th Cir. 1993); Ogelsby v.

Dept. of Army, 920 F.2d 57, 61-62 (D.C. Cir. 1990), federal courts have observed

that this statute expressly provides for “constructive exhaustion” of administrative

remedies, authorizing a FOIA requester to file a court action, after the agency has

failed to meet its statutory time periods to respond to either a FOIA request or

FOIA appeal, pursuant to 5 U.S.C. § 552(a)(6)(C)(I). See 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 (4th Cir. 1995); Wildlands CPR v. United States Forest Service,



required by FOIA for tolling the agency’s duty of timely responding to a FOIA
request or appeal. See 5 U.S.C. § 552(a)(6)(A).
      6
        The FBI did not respond to Appellant’s FOIA request or administrative
appeal until January 13, 2010, several months after Appellant had filed this Court
action (on November 17, 2009. See ER (Civil Docket).
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558 F.Supp.2d 1096, 1102-1103 (D. Montana 2008).

      At the time that Appellant filed this FOIA action,7 he had already

constructively exhausted his administrative remedies pursuant to 5 U.S.C. §

552(a)(6)(C)(I) of the FOIA statute. Therefore, the Court below’s conclusion that

Appellant had not exhausted his administrative remedies is clearly legal error under

these circumstances. See e.g Pollack, 49 F.3d at 118-119 (4th Cir. 1995).

      In Pollack, the Fourth Circuit fully considered the same legal issue described

above, and found that the District Court had erred in dismissing Plaintiff FOIA

requester’s action for ‘failure to exhaust administrative remedies” by noting that

the “constructive exhaustion” provision of FOIA expressly authorized the filing of

a court action. Id.8


      7
          This action was filed on November 17, 2009. See ER 101 (Civil Docket).
      8
         In Pollack, although the Court ultimately ruled for Defendant Department
of Justice, it did so, not on the basis of failure to exhaust administrative remedies,
but by thereafter finding that (unlike the present action) the FOIA did not have a
statutory basis for not paying search fees, and had also not filed a request for a
public interest FOIA fee waiver. See Pollack v. Department of Justice, 49 F.3d at
119-120 (4th Cir. 1995). However, as discussed herein, in the present action,
Appellant has an express statutory basis for not being required to pay search fees
as a matter of law, by application of 5 U.S.C. § 552(a)(4)(A)(viii), and in addition,
Appellant in this action has sought a public interest fee waiver pursuant to 5
U.S.C. § 552(a)(4)(A)(iii). Therefore, the alternative basis for dismissal in Pollack
clearly do not apply to the instant action.


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      The Court below erred by finding that it should dismiss Appellant’s action

for alleged lack of subject matter jurisdiction and “failure to exhaust administrative

remedies” when, as set forth above, (1) the issue of failure to exhaust

administrative remedies is not jurisdictional, but rather a statutory requirement, and

(2) the FOIA statute itself expressly provides for “constructive exhaustion” of

administrative remedies if the agency fails to meet statutory deadlines for

responding to a FOIA request or FOIA appeal, and (3) there is undisputed evidence

that Appellant had in fact constructively exhausted his administrative remedies

prior to filing the present FOIA action.

      Therefore, this Court should reverse the District Court’s ruling, improperly

dismissing Appellant’s action for alleged failure to exhaust administrative

remedies, where both the undisputed facts and applicable law clearly demonstrate

that Appellant has constructively exhausted his administrative remedies pursuant to

5 U.S.C. § 552(a)(6)(C)(I).

    2. Appellant Was Not Required To Pay Search Fees For This FOIA Request

      In addition to the fact that Appellant had constructively exhausted his

administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C)(I), as described above,

the District Court’s stated legal premise for dismissing this action, by asserting that

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Appellant had allegedly failed to pay search fees for this FOIA request, is also

incorrect as a matter of law, as in fact, no FOIA search fees are properly allowed to

be charged for this 2009 FOIA request pursuant to 5 U.S.C. § 552(a)(4)(A)(viii).9

          FOIA expressly bars an agency from charging a requester search fees under

circumstances such as the case at hand, where the agency has failed to meet its

statutory deadlines for responding to a FOIA request or FOIA appeal, and has not

otherwise provided notice to the requester of any “unusual circumstances” requiring

additional time in responding to the records request. Id. This provision added by

the 2007 amendments to the FOIA statute, expressly provides:

      An agency shall not assess search fees (or in the case of a requester described
      under clause (ii)(II), duplication fees) under this subparagraph if the agency
      fails to comply with any time limit under paragraph (6), if no unusual or
      exceptional circumstances (as those terms are defined for purposes of
      paragraphs (6)(B) and C respectively) apply to the process of the request.).

      5 U.S.C. § 552(a)(4)(A)(viii). A federal agency cannot lawfully charge any

search fees to a FOIA requester if the agency has failed to comply with the time

requirements for responding to a FOIA request or a FOIA appeal that is required by




      9
        Appellant Monaghan expressly (and timely) raised the issue that the
agency was prohibited from charging search fees for his August 2009 FOIA
request on the basis of 5 U.S..C. 552 (a)(4)(A)(viii) in the proceedings below, both
in support of his Motion for Summary Judgment, see ER 43-44, and also in his
opposition to the agency’s Motion To Dismiss (Court Doc. 38 at 13-14).
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5 U.S.C. § 552(a)(6)(A)(I) - (ii)10. See 5 U.S.C. § 552(a)(4)(A)(viii).

      In the present action, it is beyond dispute that the agency failed to timely

respond to either Appellant’s FOIA request, ER 92-93, or to his FOIA

administrative appeal, ER 94-95, within the twenty working days required by 5

U.S.C. § 552(a)(6)(A)(I) - (ii). See ER 24-26 (Dec Monaghan ¶¶ 2-6). Therefore,

the agency cannot charge Appellant any search fees for this August 2009 FOIA

request as a matter of law.

      The District Court clearly erred in its consideration of this issue, by holding

that Appellant was somehow barred from addressing this issue because it was not

set forth in his Complaint, and by otherwise finding that the agency could assess

search fees based upon the Court finding that “his request for records from ‘the

largest and most complex investigatory files ever created by the FBI (doc # 31-1


      10
          Although this provision of FOIA provides that an agency may assess
search fees if there are either “unusual circumstances” or “extraordinary
circumstances” excusing its delay in responding to a FOIA request or appeal,
those terms have express definitions and procedural requirements under the FOIA
statute that do not apply to the present action. An agency can only obtain an
extension of time of an additional ten working days based upon “unusual
circumstances” and only after providing written notice to the FOIA requester.
See 5 U.S.C. 552(a)(4)(B). The term “exceptional circumstances” applies only
where a Court has issued an order to retain jurisdiction and allow the agency
additional time to complete its review for additional responsive records. See 5
U.S.C. 552(a)(4)©). Neither of these provisions apply to the case at bar.



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would certainly qualify for ‘unusual circumstances.’” See ER 6. However, there is

no merit to either of these positions as a matter of law.

      Appellant cannot be required to preemptively anticipate and address issues

that had not yet been presented when he filed his FOIA action. At the time that

Appellant filed his Complaint initiating this action (and even at the time Appellant

filed Amended Complaint on November 20, 2009), he had still not received any

response from the FBI to his August 2009 FOIA request, or his September, 2009

administrative appeal, see ER 88; see also ER 26 (Dec Monaghan ¶ 6), and certainly

had no “crystal ball” to anticipate the arguments that would be subsequently raised

in the agency’s October 14, 2010 “Motion To Dismiss, or in the alternative, for

Summary Judgment” (Court Doc. 31) at the time he filed his November, 2009

pleadings. However, it is beyond dispute that Appellant did timely and expressly

address this issue directly after it was presented, in both his December 6, 2010

Opposition to the agency’s Motion To Dismiss (Court Doc. 38 at 13-14), and in his

Motion for Summary Judgment filing also submitted on that date. See ER 43.11 The

District Court erred in holding that Appellant’s timely response to this issue was



      11
         As previously noted herein, Plaintiff’s “Motion for Summary Judgment,
and for Reconsideration of FOIA Fee Waiver Ruling” was entered by the Court as
two separate filing entries, with the same document serving as both Court Doc. 35
(Motion for Summary Judgment) and Court Doc. 36 (Motion To Reconsider).
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insufficient, and that he was required to raise this issue in his Complaint (before it

was raised by Defendant in this action). See ER 6 (District Court Order).

      The Dettman case12 cited by the Court below clearly has no bearing

whatsoever on the legal holding suggested by the District Court, that Appellant

cannot address this issue within his Opposition to the Defendant’s Motion To

Dismiss, and was required to address this issue (before it was even raised by the

agency) in his Complaint. See ER 6 (Court Order); cf. Dettman v. Dept. of Justice,

802 F.2d 1472, 1476 (D.C. Cir. 1986).

      The District Court also erred by suggesting that the provisions of 5 U.S.C. §

552(a)(4)(A)(viii) did not apply to the case at hand, based upon alleged “unusual

circumstances” pertaining to the FOIA request at issue in this action. See ER 6.

      Pursuant to the FOIA statute, an agency can only obtain an extension of time

of an additional ten working days based upon “unusual circumstances” and only

after providing written notice to the FOIA requester. See 5 U.S.C. 552(a)(4)(B).

In the present action, there is no evidence of the agency ever providing any written

notice of any “unusual circumstances” to the FOIA requester, and in any event, the

agency’s delay in responding to both Appellant’s FOIA request, and to his

administrative appeal, were well beyond the additional ten days authorized for

      12
           See Dettman v. U.S. Dept. Of Justice, 802 F.2d 1472 (D.C. Cir. 1986).
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“unusual circumstances” by this statute.

      Lastly, Appellant would note that the agency cannot claim that it could assess

fees for Appellant’s August 2009 FOIA request at issue in this action on the basis

that such fee assessment was authorized by any alleged non-payment of fees for any

previous FOIA request, as there is no evidence in the record demonstrating that

Appellant had received notice, at any time prior to filing this action, that he

would be assessed search fees for his August, 2009 FOIA request on the basis of

owing any past fees due for non-payment of prior FOIA search fees to the agency.13



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

                                Standard of Review

      This Court reviews FOIA fee waiver decisions de novo, with review limited

to the administrative record that was before the agency. Friends of the Coast Fork

v. U.S. Dept. Of Interior, 110 F.3d 53, 54 (9th Cir. 1997).

      The Administrative Record Supports Entitlement To A Fee Waiver

      The District Court erred in the proceedings below by finding that Appellant

had not demonstrated that he was entitled to a public interest fee waiver for his



      13
         Appellant Monaghan does not owe any funds to the FBI for any search
fees associated with any prior FOIA requests at this time.
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August 2009 FOIA request pursuant to the FOIA fee waiver provision of 5 U.S.C.

§ 552(a)(4)(A)(iii). See ER 50-53 (Court Order on fee waiver issue).

      The FOIA statute provides that a public interest fee waiver should be granted

“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

government, and is not primarily in the commercial interest of the requester.” 5

U.S.C. § 552(a)(4)(A)(iii). By enacting this statutory language, Congress intended

FOIA’s fee-waiver provision to be “liberally construed in favor of waivers for

noncommercial requesters. Judicial Watch, Inc. v. Rossotti,, 326 F.3d 1309, 1312

(D.C. Cir. 2003 (quoting 132 Cong. Rec. 27, 190 (1986) (statement of Sen. Leahy);

see also McClellan Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284

(9th Cir. 1987) (same).

      The FOIA requester bears the initial burden of showing that disclosure of the

records requested address the above referenced public interest standard. See e.g.,

Larson v. CIA, 843 F.2d 1481, 1483 (D.C. Cir. 1988). However, this Circuit (and

other federal courts) have consistently held that the requester need only present the

agency with a primae facie non-conclusory showing that the requested disclosure is

in the public interest. See e.g. Friends of the Coast Fork 110 F.3d at 55; see also

Judicial Watch, 326 F.3d at 1310-1315.

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      This Court has observed that if the reasons given by the agency for denying a

fee waiver “are inadequate, and if the requesters meet their burden, then a full fee

waiver is in order.” Friends of the Coast Fork, 110 F.3d at 55.14

      In the present action, Appellant Monaghan has clearly met his initial primae

facie burden of demonstrating an entitlement to a public interest fee waiver within

the administrative record presented to the agency, including both his August 2009

FOIA request, ER 92-93, and his administrative appeal. ER 94-95.

      Appellant’s August, 2009 FOIA request provides specific and non-conclusory

support for granting a public interest fee waiver associated with this records request,

demonstrating that the requester personally maintains “an open public access

internet FOIA archive of records pertaining to various aspects of the terrorist attacks

of September 11, 200,” ER 82, and that the September 11, 2001 agency records

stored in the FOIA requester’s archive have been disseminated to increase the

public’s understanding by the use of Appellant’s FOIA records in published

materials, including express reference to these FOIA materials being



      14
        As one federal Court has observed, Congress intended that “when such
requesters demonstrated a minimal showing of their legitimate intention to use the
requested information in a way that contributes to public understanding of the
operations of government agencies, no fee attaches to the request.” Inst. For
Wildlife Prot. v. U.S. Fish & Wildlife Serv., 290 F.Supp. 2d 1226, 1232 (D. Or
2003).
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cited in a 2008 book “The New Pearl Harbor Revisited” that was selected by

Publisher’s Weekly in 2008 as its “pick of the week,” and also expressly indicating

that the information from his FOIA archive obtained by the requester is used on the

web sites of the Alex Jones nationally syndicated radio programs concerning the

September 11 terrorist attacks. ER 93.

      Appellant’s administrative appeal further provides infortmation that the data

presented in the FOIA archive which Appellant maintains on the September 11,

2001 terrorist attacks were also recently reported by the Beacon-News, a member of

the Chicago Sun-Times news Group, see ER 94, and that information presented in

Appellant’s FOIA archive, was also reported in the video documentary “Loose

Change 9/11: An American Coup” that is being distributed by the Microcinema

International, an international video production distributer. See ER 95. In addition,

Appellant has clearly demonstrated that there is a very significant public interest in

the subject matter of his August 2009 FOIA request, concerning the operations and

activities of the FBI, and other federal investigatory agencies, associated with the

terrorist attacks on September 11, 2001. See ER 93 (FOIA request) and ER 95

(FOIA Appeal). Appellant has also met his burden in demonstrating that there is no

commercial interest associated with this FOIA request. See ER 92, 94.




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      In contrast, Defendant -Appellee FBI was given two separate opportunities to

address Appellant’s fee waiver request and administrative appeal before Appellant

filed the instant action, and did not submit any objections to his request for a public

interest fee waiver in response to Appellant’s August 2009 FOIA request, nor in

response to Appellant’s September, 2009 FOIA Appeal, as to any of the fee waiver

issues described above at any time prior to Appellant filing the present court action.

Therefore, for purposes of judicial review, the administrative record in this matter is

limited solely to Appellant’s FOIA request (ER 92-93) and to Appellant’s

administrative appeal (ER 94-95).15

      As Defendant-Appellee did not submit any response in the administrative

proceedings, the agency thereby waived its right to submit any new arguments or

new objections as to Appellant’s entitlement to a public interest fee waiver for this

FOIA request. The agency cannot rely upon any post hoc arguments or submissions



      15
          Appellee may attempt to argue that additional records were added to the
administrative record by a stipulation that was entered into by Appellee’s counsel
and pro se Plaintiiff Monaghan, in which the parties agreed to stipulate to an
enlargement of the “Administrative Record” to include additional documents that
were clearly not actually presented to the agency prior to the commencement of
this action. See ER 54-81. However, in the proceedings below, Appellant
subsequently filed an objection to the inclusion of these supplemental materials
that were not in fact actually components of the administrative presented before
the agency. See ER 44-47 (Request for Reconsideration); see also ER 27 - 30
(Dec Monaghan).
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that were developed or presented after this case was filed on November 17, 2009.

See ER 101 (Civil Docket). The agency is limited to the record developed during the

administrative proceedings, and these administrative proceedings closed upon

Appellant’s filing of this litigation.

      This Court should not allow the agency to rely upon its belated post hoc

“response” to Appellant’s FOIA request issued on January 13, 2010,see ER 63,

several months after the commencement of the present action. FOIA directs that

judicial review is strictly “limited to the record before the agency.” 5 U.S.C. §

552(a)(4)((A)(vii). See Friends of the Coast Fork, 110 F.3d at 55.

      As Appellant previously noted in his filings presented to the Court below,

the FBI’s January 13, 2010 post hoc response, produced to support the agency’s

litigation position after the litigation had already begun was not a part of the record

before the agency, and should not be considered here. See ER 46 (Motion to

Reconsider). See e.g. Motor Vehicle Mfr’s Assoc. v. State Farm Mut. Auto Ins. Co.,

463 U.S. 29, 50 (1983) (A court may not accept post hoc justifications for agency

action); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) (“The focal point for

judicial review should be administrative record already in existence, not some new

record made initially in the reviewing court.”).




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      The Court below’s decision on Appellant’s fee waiver request expressly

recognized that disclosure associated with the FOIA request at issue in this action

meets the statutory requirement of having no commercial interest by the requester.

ER 51. The District Court also expressly found that the subject of Appellant’s

FOIA request meets the applicable criteria of pertaining to “the operations or

activities of the government.” Er 52.

      However, the District Court erred by finding that Appellant had not

demonstrated his request was “likely to contribute to a public understanding” or in

demonstrating that this FOIA request is “likely to contribute significantly to public

understanding of government operations or activities.” ER 52-53.

      Appellant has clearly met this fee waiver criteria in his FOIA request and his

administrative appeal, by describing, in non-conclusory and specific references,

that he maintains an archive of agency records pertaining to the September 11,

2011 terrorist attack, the subject matter of the present FOIA request, developed

from Appellant’s FOIA requests, that he personally manages, and which has been

cited and used for discussion and analysis of the September 11, 2001 incident by

nationally acclaimed books, videos and web sites, which are described with

specificity within Appellant’s FOIA request and in his administrative appeal. See

ER 92-93 (FOIA request); see also ER 94-95 (FOIA appeal).

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      Appellant has met his burden of presenting primae facie description of the

public interest benefits of disclosure of the agency records at issue in his FOIA

request, and such ‘reasonable specificity” is “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 also an undisputed showing of a public interest fee waiver by a non-commercial

FOIA requester. Id. In sum, Appellant has demonstrated entitlement to a public

interest fee waiver for his August 2009 FOIA request, and the Court below erred in

denying his fee waiver request in this action.

                               VII. 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).

      In addition, this Court should 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 (Appellant’s FOIA request and

administrative appeal).

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  Respectfully Submitted,

   /s/ Daniel J. Stotter                    Date: September 6, 2011
  Daniel J. Stotter, OR # 911090
  STOTTER & ASSOCIATES LLC
  408 SW Monroe Ave, Ste L 163
  Corvallis, OR 97333
  Tel. (541) 738-2601
  dstotter@qwestoffice.net




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                  VIII. STATEMENT OF RELATED CASES

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

       /s/ Daniel J. Stotter                      Date: September 6, 2011
      Daniel J. Stotter, OR # 911090

                     IX. 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

6,067 words based upon the result provided by using the word count function of

Word Perfect (Version 12).

       /s/ Daniel J. Stotter                      Date: September 6, 2011
      Daniel J. Stotter, OR # 911090




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                       X. CERTIFICATE OF SERVICE
      All Case Participants Registered for the Appellate CM/ECF System

      I certify that on September 6, 2011, I electronically filed APPELLANT’S

OPENING 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.

      I further certify that I caused to be served on this date a true and correct copy

of Appellant’s Excerpts of Record, sent via U.S. mail, addressed to counsel of

record for Appellees: Patrick A. Rose, U.S. Attorney’s Office, 333 Las Vegas

Blvd., South, Ste. 5000, Las Vegas, NV 89101.

      Executed September 6, 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
      dstotter@qwestoffice.net
      Attorney for Appellant Aidan Monaghan

				
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