PAEZ, Circuit Judge:
Plaintiff Stephen Yagman filed suit against the Central Intelligence Agency ("CIA") and its director
On August 2, 2014, Yagman sent Defendants a letter requesting "[r]ecords/information" on "the names and company/organization affiliations of any CIA employees, agents, operatives, contractors, mercenaries, and/or companies who are alleged to have engaged in torture of persons." Specifically, the letter sought the names and affiliations of those "as to whom President Obama stated that `we tortured some folks' on August 1, 2014: that is, who are the individuals whom the word `we' refers to?"
Within FOIA's twenty-day deadline, Defendants responded to Yagman with a letter advising him that "[u]nder the provisions of the FOIA, federal agencies are not required to answer questions posed as FOIA requests. Since your request does not constitute a request for records, we must decline to process it." Yagman reiterated his request in a subsequent letter, but Defendants reaffirmed their position.
Yagman then filed a class action complaint against Defendants to compel disclosure. Two months after service of the complaint, Defendants left two messages for Yagman instructing him to call the agency's FOIA hotline "to discuss his request." At his direction, Yagman's receptionist called the hotline. Defendants again asserted that the agency was unable to process Yagman's request, but they "expressed a willingness" to help him rework his request.
When Yagman did not contact the agency again, Defendants moved to dismiss Yagman's complaint for lack of subject matter jurisdiction. The district court granted Defendants' motion, holding that Yagman's letter did not constitute a request for records. The court concluded that Yagman's failure to submit a valid request was a failure to exhaust administrative remedies under FOIA, and, as a result, the court lacked subject matter jurisdiction. Yagman timely appealed.
We review de novo the district court's dismissal for lack of subject matter jurisdiction. Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 974 (9th Cir. 2012).
Congress enacted FOIA in recognition of the fact that government transparency
In this case, Defendants neither produced the requested records nor invoked an exemption. Rather, Defendants rejected Yagman's letter as a question disguised as a FOIA request. Defendants alternatively argue that Yagman's request did not "reasonably describe" the records he sought and, therefore, did not trigger the CIA's duty to respond. Under either theory, Defendants argue that Yagman failed to exhaust his administrative remedies and, accordingly, the district court lacked subject matter jurisdiction.
We disagree, in all respects save one. Although Defendants were required to liberally construe Yagman's letter as a request for records, the request nonetheless failed to "reasonably describe" the records sought. But this failure bears on the merits of Yagman's claim, not on the district court's subject matter jurisdiction. We therefore reverse the district court's judgment, and remand.
Our sister circuits have recognized that federal agencies have a duty to construe FOIA records requests liberally. Rubman v. USCIS, 800 F.3d 381, 389-91 (7th Cir. 2015) (explaining that the defendant agency was required to liberally construe plaintiff's request for "all documents" despite the ambiguity of the word "documents" in the request); Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1255 (11th Cir. 2008) (concluding that, even if ambiguous, the EPA was "obliged under FOIA to interpret [requests] ... liberally in favor of disclosure"); Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (concluding that the Customs Service should have liberally construed a request for records "pertaining to" Ross Perot as seeking even those records that were not specifically indexed under Perot's name).
Indeed, the Department of Justice ("DOJ") itself has long issued guidance to
We have not yet had the opportunity to consider the issue. But we are persuaded that a duty of liberal construction accords with the basic purpose of FOIA "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). Liberal construction is warranted to achieve the core purpose of FOIA: allowing the public to find out "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (quoting Mink, 410 U.S. at 105, 93 S.Ct. 827 (Douglas, J., dissenting)).
While we have rarely reviewed an agency's refusal to respond to a records request on the ground that it poses a question,
The flaw of Yagman's FOIA request is its vagueness, not the way in which he framed it. As we observed in Marks, "FOIA requires that federal agencies make records available only upon a request which `reasonably describes' the records sought." Marks v. United States, 578 F.2d 261, 263 (9th Cir. 1978) (quoting 5 U.S.C. § 552(a)(3)). Although "courts have been wary to prohibit this requirement from becoming a loophole through which federal agencies can deny the public access to legitimate information, it has been held that broad, sweeping requests lacking specificity are not permissible." Id.
Yagman insists that his request was not vague, but a description should "enable[ ] a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." Id. (quoting H. Rep. No. 93-876, at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271). This inquiry does not require Yagman to identify documents or databases by name, but some reasonable description is required. In Shapiro v. CIA, for example, the D.C. district court held that a FOIA request for all CIA files that "mention" Nelson Mandela was reasonably descriptive under FOIA, since "the scope of [the plaintiff's] request [wa]s clear," Shapiro, 170 F.Supp.3d at 155-56, and "should involve virtually no guesswork," id. at 154.
Here, Defendants would need to engage in quite a bit of guesswork to execute Yagman's request. His request does not identify specific persons, much less specific documents, types of documents, or types of information. Nor does his request suggest much in the way of times, dates, locations, or even clearly indicate if he is seeking the identities of those who have engaged in torture or only those who are alleged to have engaged in torture.
Our review does not end here. Defendants argue that Yagman's failure to "reasonably describe" the records sought constitutes a failure to exhaust administrative remedies and, as a result, the district court lacked subject matter jurisdiction. We disagree. The requirement in § 552(a)(3) that a person submitting a FOIA request "reasonably describe" what she or he seeks is properly viewed as an ingredient of the claim for relief, rather than a question of subject matter jurisdiction.
"Judicial opinions ... often obscure the [law] by stating that the court is dismissing for lack of jurisdiction when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim." Arbaugh v. Y&H Corp., 546 U.S. 500, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (internal quotation marks omitted). As the Supreme Court has explained, such "drive-by jurisdictional rulings ... should be accorded no precedential effect." Id. (internal quotation marks omitted).
Instead, statutory requirements should be considered jurisdictional only when Congress "clearly states" as much. Id. at 515-16, 126 S.Ct. 1235 ("If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue." (footnote omitted)). "[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Id. at 516, 126 S.Ct. 1235.
Drawing from the Supreme Court's opinions in Arbaugh, 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097, and later related cases,
Here, the first two factors strongly suggest that the description requirement is nonjurisdictional. The requirement "is not
As to the third factor, we see no reason why the description requirement should be treated as jurisdictional. The district court and parties can address any FOIA request that fails to satisfy the description requirement with a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim. There is no need to elevate the requirement to the status of a jurisdictional prerequisite.
To the extent Defendants argue the requirement must be satisfied for the purposes of exhaustion and exhaustion itself is jurisdictional, we reject that argument as well. Significantly, FOIA does not expressly require exhaustion, much less label it jurisdictional, nor does FOIA include exhaustion in its jurisdiction-granting provision. See 5 U.S.C. § 552(a)(4)(B). Therefore, exhaustion cannot be considered a jurisdictional requirement. See Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (differentiating between an exhaustion requirement that is a "statutorily specified jurisdictional prerequisite" and a requirement that is "simply a codification of the judicially developed doctrine of exhaustion"); 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 ... has the Supreme Court held that exhaustion is a jurisdictional prerequisite."); see also Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (same).
The majority of circuits, including the D.C. Circuit, see Hidalgo, 344 F.3d 1256, have concluded as much, see Hull v. IRS, 656 F.3d 1174, 1181-82 (10th Cir. 2011) (collecting cases). They agree that "exhaustion under FOIA is a prudential consideration rather than a jurisdictional prerequisite." Id. at 1182.
Our opinion in In re Steele does not dictate otherwise. There, we held that the district court lacked jurisdiction under FOIA because the plaintiffs never submitted a FOIA request to the relevant agency. See United States v. Steele (In re Steele), 799 F.2d 461, 466 (9th Cir. 1986) ("Neither of [the plaintiffs] ever made a request ... from the [agency] pursuant to the FOIA."). This is hardly the situation in Yagman's case, where he submitted a formal, albeit vague request pursuant to FOIA and reiterated his request to Defendants when they rejected it.
Although In re Steele does assume that "[e]xhaustion of a part[y's] administrative remedies is required under the FOIA before that party can seek judicial review," 799 F.2d at 465, this statement appears, at most, to be the type of "drive-by jurisdictional ruling" that the Supreme Court warned against twenty years after In re Steele was decided. The statement is further undermined by the fact that we considered whether the futility exception to exhaustion applied. "If exhaustion was strictly jurisdictional, [we] would have had no need to address the issue of the `futility exception' at all. In that sense, In re Steele actually supports a conclusion that exhaustion is a jurisprudential doctrine, rather than a jurisdictional one." Andrus v. Dep't of Energy, 200 F.Supp.3d 1093, 1101 (D.
We conclude that the district court erred when it dismissed the case for lack of subject matter jurisdiction, and we reverse the district court's judgment. But we agree with the district court that Yagman failed to "reasonably describe" the records he sought. Nonetheless, we remand to the district court with instructions to allow Yagman to reframe his request for documents in light of our holding and the CIA's repeated offers to assist him in formulating a reasonably specific request. The district court may stay proceedings as it deems appropriate to allow the parties to work out any revised request, if possible, and to allow the CIA to respond to any revised request as permitted under FOIA or any implementing regulations.
Providing the CIA another opportunity to assist in developing a more descriptive request is not only appropriate, but also warranted, given that the CIA's own regulations state that requests "which do not meet [the reasonable description] requirements will be considered an expression of interest and the Agency will work with, and offer suggestions to, the potential requester in order to define a request properly." 32 C.F.R. § 1900.12(c); accord Hall & Assocs. v. EPA, 83 F.Supp.3d 92, 104 (D.D.C. 2015) (directing the defendant agency to cooperate with the plaintiff "in accordance with [its] FOIA regulations," which require the agency to assist those requesting records).
Additionally, we note that courts have held that an agency has "no right to `resist disclosure because the request fails "reasonably [to] describe" records unless it has first made a good faith attempt to assist the requester in satisfying that requirement.'" Ruotolo v. Dep't of Justice, Tax Div., 53 F.3d 4, 10 (2d Cir. 1995) (quoting Ferri v. Bell, 645 F.2d 1213, 1221 (3d Cir. 1981), modified on other grounds, 671 F.2d 769 (3d Cir. 1982)). While Defendants did contact Yagman to "discuss" his request three months after he filed this lawsuit, his request had already been twice rejected with no offer to "work with, and offer suggestions to, the potential requester in order to define a request properly."
The judgment is
Press Conference by the President, The White House (Aug. 1, 2014, 2:45 PM), https://www.whitehouse.gov/the-press-office/2014/08/01/press-conference-president (last visited July 31, 2017).