Case Detail

FOIA Project Annotation: A federal court in Illinois has ruled that James Chelmowski failed to exhaust his administrative remedies when he appealed the FCC's decision to OGIS rather than to the FCC. But the court found that the agency was not permitted to charge Chelmoswki $917 in fees for searching for records because it had missed the statutory time limit for responding and had not shown that its delay was due to exceptional ot unusual circumstances. Chelmowski submitted four FOIA requests to the FCC. The agency provided a consolidated response to his first two requests, disclosing 14 pages. Chelmowski appealed that decision and the agency provided an additional 87 pages and told him that if the agency did not hear back from him within a month it would consider the appeal resolved. Rather than respond to the agency, Chelmowski filed a complaint with OGIS, which he emailed to the FCC as well. Chelmowski submitted two more requests to the FCC. The agency responded to one request indicating it had no more records than those that had already been sent to him. Chelmowski filed an appeal of that request. The agency finally sent a consolidated response to both requests indicating that the second request would require a further database search that would cost $917. The agency argued that Chelmowski had not exhausted his administrative remedies when he appealed to OGIS rather than the agency. The court agreed, noting that "there is no authority on which this Court could find that submitting a request to OGIS for assistance can supplant an application for review from the full Commission. . ." Chelmowski argued the agency had violated Section (a)(4)(A)(viii)(I)(II), which prohibits an agency from assessing fees if it misses a deadline for responding. The agency argued that an exception to the prohibition for the existence of exceptional circumstances applied. But the court noted that "the FCC does not provide any reason for the delay." The FCC also claimed its response constituted a new search, but the court observed that "this argument is too bare for this Court to properly find as a matter of law that the FCC may assess the $917 fee."
Issues: Litigation - Jurisdiction - Failure to Exhaust, Time Limits - Tolling of fees

Date Filed	Doc #	Docket Text
2016-05-25	1	COMPLAINT filed by James Chelmowski; (Exhibits). (Poor Quality Original- Paper Document on File.) (jjr, ) Modified on 6/22/2016 (jjr, ). (Entered: 05/26/2016)
2016-05-25	2	CIVIL Cover Sheet. (jjr, ) (Entered: 05/26/2016)
2016-05-25	3	PRO SE Appearance by Plaintiff James Chelmowski. (jjr, ) (Entered: 05/26/2016)
2016-06-16		SUMMONS Issued as to Federal Communication Commission, U.S. Attorney, and U.S. Attorney General (daj, ) (Entered: 06/16/2016)
2016-07-01	5	MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing set for 7/20/2016 at 09:00 AM. Mailed notice (rth, ) (Entered: 07/01/2016)
2016-07-11	6	SUMMONS Returned Executed by James Chelmowski as to All Defendants (Chelmowski, James) (Entered: 07/11/2016)
2016-07-11	7	DESIGNATION of John D. Cooke as U.S. Attorney for Defendant Federal Communication Commission (Cooke, John) (Entered: 07/11/2016)
2016-07-12	8	MOTION by Defendant Federal Communication Commission for extension of time to file answer regarding complaint 1 (Cooke, John) (Entered: 07/12/2016)
2016-07-12	9	NOTICE of Motion by John D. Cooke for presentment of motion for extension of time to file answer, motion for relief 8 before Honorable Sharon Johnson Coleman on 7/20/2016 at 08:45 AM. (Cooke, John) (Entered: 07/12/2016)
2016-07-13	10	STATUS Report Joint Initial Status Report by James Chelmowski (Chelmowski, James) (Entered: 07/13/2016)
2016-07-14	11	RESPONSE by James Chelmowski to MOTION by Defendant Federal Communication Commission for extension of time to file answer regarding complaint 1 8 (Attachments: # 1 Exhibit)(Chelmowski, James) (Entered: 07/14/2016)
2016-07-15	12	MOTION by Plaintiff James Chelmowski to compel AT&T Subpeona (Attachments: # 1 Exhibit)(Chelmowski, James) (Entered: 07/15/2016)
2016-07-15	13	NOTICE of Motion by James Chelmowski for presentment of motion to compel 12 before Honorable Sharon Johnson Coleman on 7/20/2016 at 08:45 AM. (Chelmowski, James) (Entered: 07/15/2016)
2016-07-20	14	MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing held on 7/20/2016. Motion hearing held on 7/20/2016. Defendant's motion for extension of time to answer or otherwise plead 8 is granted to 8/19/2016. Plaintiff's motion to compel 12 is stricken. Status hearing set for 8/19/2016 at 09:00 AM.Mailed notice (rth, ) (Entered: 07/21/2016)
2016-07-25	15	AMENDED complaint by James Chelmowski against Federal Communication Commission (Attachments: # 1 Exhibit)(Chelmowski, James) (Entered: 07/25/2016)
2016-08-09	16	MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing set for 8/19/2016 is stricken and reset sua sponte to 8/24/2016 at 09:00 AM.Mailed notice (rth, ) (Entered: 08/09/2016)
2016-08-16	17	MOTION by Plaintiff James Chelmowski to compel AT&T (Chelmowski, James) (Entered: 08/16/2016)
2016-08-16	18	NOTICE of Motion by James Chelmowski for presentment of motion to compel 17 before Honorable Sharon Johnson Coleman on 8/24/2016 at 08:45 AM. (Chelmowski, James) (Entered: 08/16/2016)
2016-08-19	19	ANSWER to amended complaint by Federal Communication Commission (Cooke, John) (Entered: 08/19/2016)
2016-08-22	20	ATTORNEY Appearance for Respondent AT&T by Mark W. Lewis (Lewis, Mark) (Entered: 08/22/2016)
2016-08-22	21	RESPONSE by AT&T to MOTION by Plaintiff James Chelmowski to compel AT&T 17 (Lewis, Mark) (Entered: 08/22/2016)
2016-08-23	22	REPLY by Plaintiff James Chelmowski Reply to Defendant's Answer (Chelmowski, James) (Entered: 08/23/2016)
2016-08-24	23	MINUTE entry before the Honorable Sharon Johnson Coleman:Status hearing held. Counsel for Defendant FCC reported on the status of discovery regarding the emails requested by Plaintiff. Case set for further status on 10/14/2016 at 9:00 a.m. Motion hearing held. Plaintiffs Motion to Compel AT&T and Sanctions 17 is denied at this time. A written formal ruling shall follow shortly.Mailed notice (lxs, ) (Entered: 08/24/2016)
2016-08-24	24	MINUTE entry before the Honorable Sharon Johnson Coleman:A motion hearing was held on Plaintiffs Motion to Compel AT&T and Sanctions 17 on 8/24/2016. This Court considered the written and oral arguments on the motion, and the motion is denied. Discovery in FOIA cases is rare. Baker & Hostetler LLP v. United States DOC, 473 F.3d 312, 318 (D.C. Cir. 2006). Courts permit discovery in FOIA cases where a plaintiff has made a sufficient showing that the agency acted in bad faith. Justice v. I.R.S., 798 F. Supp. 2d at 47 (citations omitted); Ocasio v. DOJ, 67 F. Supp. 3d 438, 440 (D.D.C. 2014). Here, plaintiff is seeking to compel discovery from a third-party, AT&T, and has not shown any basis in law or fact for this Court to allow the request. Mailed notice (lxs, ) (Entered: 08/25/2016)
2016-10-14	25	MINUTE entry before the Honorable Sharon Johnson Coleman: Status hearing held on 10/14/2016. Plaintiff's motion for judgment on the pleadings or other dispositive motions with supporting memoranda due by 10/21/2016. Response due by 11/14/2016. Reply due by 11/28/2016. Status hearing set for 12/19/2016 at 09:45 AM.Mailed notice (rth, ) (Entered: 10/14/2016)
2016-10-21	26	MOTION by Plaintiff James Chelmowski for summary judgment (Chelmowski, James) (Entered: 10/21/2016)
2016-10-27	27	MEMORANDUM by James Chelmowski in support of motion for summary judgment 26 Memorandum of Exhibits (Attachments: # 1 Exhibit Memo of Exhibits 1 of 6, # 2 Exhibit Memo of Exhibits 2 of 6, # 3 Exhibit Memo of Exhibits 3 of 6, # 4 Exhibit Memo of Exhibits 4 of 6, # 5 Exhibit Memo of Exhibits 5 of 6, # 6 Exhibit Memo of Exhibits 6 of 6)(Chelmowski, James) (Entered: 10/27/2016)
2016-10-27	28	MEMORANDUM by James Chelmowski in support of motion for summary judgment 26 Statement of Material Facts (Chelmowski, James) (Entered: 10/27/2016)
2016-10-28	29	MEMORANDUM by James Chelmowski in support of motion for summary judgment 26 Memorandum of Points and Authorities (Chelmowski, James) (Entered: 10/28/2016)
2016-11-04	30	MOTION by Defendant Federal Communication Commission to strike MOTION by Plaintiff James Chelmowski for summary judgment 26 , memorandum in support of motion 29 , memorandum in support of motion 28 (Cooke, John) (Entered: 11/04/2016)
2016-11-04	31	NOTICE of Motion by John D. Cooke for presentment of motion to strike, motion for relief,, 30 before Honorable Sharon Johnson Coleman on 11/10/2016 at 08:45 AM. (Cooke, John) (Entered: 11/04/2016)
2016-11-08	32	OBJECTIONS by James Chelmowski to MOTION by Defendant Federal Communication Commission to strike MOTION by Plaintiff James Chelmowski for summary judgment 26 , memorandum in support of motion 29 , memorandum in support of motion 28 30 (Chelmowski, James) (Entered: 11/08/2016)
2016-11-09	33	RESPONSE by James Chelmowskiin Opposition to MOTION by Defendant Federal Communication Commission to strike MOTION by Plaintiff James Chelmowski for summary judgment 26 , memorandum in support of motion 29 , memorandum in support of motion 28 30 Exhibit (Chelmowski, James) (Entered: 11/09/2016)
2016-11-10	34	MINUTE entry before the Honorable Sharon Johnson Coleman: Motion hearing held on 11/10/2016. Defendant's Motion to strike plaintiff's motion for summary judgment 30 is granted. Plaintiff's motion for summary judgment 26 is stricken. Plaintiff granted leave to file a motion for summary judgment that complies with the rules. Cross motions for summary judgment are to be filed by 12/14/2016. Parties are allowed a maximum 20 pages for their initial motions only. Responses to the motions for summary judgment are due by 1/31/2017. Replies to the motions for summary judgment due by 2/13/2017. Oral argument on the motions is set for 2/20/2017 at 10:30 AM. Status hearing set to 12/19/2016 is hereby stricken.Mailed notice (rth, ) (Entered: 11/10/2016)
2016-12-13	35	MOTION by Defendant Federal Communication Commission for summary judgment (Cooke, John) (Entered: 12/13/2016)
2016-12-13	36	RULE 56.1 Statement by Federal Communication Commission regarding motion for summary judgment 35 (Cooke, John) (Entered: 12/13/2016)
2016-12-13	37	RULE 56.2 Statement by Federal Communication Commission regarding motion for summary judgment 35 (Cooke, John) (Entered: 12/13/2016)
2016-12-14	38	MOTION by Plaintiff James Chelmowski for summary judgment (Chelmowski, James) (Entered: 12/14/2016)
2016-12-14	39	MEMORANDUM by James Chelmowski in support of motion for summary judgment 38 MEMORANDUM OF POINTS AND AUTHORITIES (Chelmowski, James) (Entered: 12/14/2016)
2016-12-14	40	MEMORANDUM by James Chelmowski in support of motion for summary judgment 38 Statement of Material Facts (Chelmowski, James) (Entered: 12/14/2016)
2016-12-14	41	MEMORANDUM by James Chelmowski in support of motion for summary judgment 38 MEMORANDUM OF EXHIBITS (Attachments: # 1 Exhibit)(Chelmowski, James) (Entered: 12/14/2016)
2017-01-10	42	DESIGNATION of Kurt N. Lindland as U.S. Attorney for Defendant Federal Communication Commission (Lindland, Kurt) (Entered: 01/10/2017)
2017-01-31	43	RESPONSE by Federal Communication Commission to MOTION by Plaintiff James Chelmowski for summary judgment 38 (Lindland, Kurt) (Entered: 01/31/2017)
2017-01-31	44	RESPONSE by Defendant Federal Communication Commission to Plaintiff's Statement of Material Facts Rule 56.1 (Lindland, Kurt) (Entered: 01/31/2017)
2017-01-31	45	RESPONSE by James Chelmowski to MOTION by Defendant Federal Communication Commission for summary judgment 35 (Chelmowski, James) (Entered: 01/31/2017)
2017-02-01	46	MOTION by Plaintiff James Chelmowski to amend/correct response to motion 45 (Attachments: # 1 Supplement Response with Corrected Clerical Error)(Chelmowski, James) (Entered: 02/01/2017)
2017-02-01	47	NOTICE of Motion by James Chelmowski for presentment of motion to amend/correct, motion for relief 46 before Honorable Sharon Johnson Coleman on 2/7/2017 at 08:45 AM. (Chelmowski, James) (Entered: 02/01/2017)
2017-02-06	48	MINUTE entry before the Honorable Sharon Johnson Coleman: Plaintiff's motion for leave to correct clerical error 46 is granted. No appearance required on 2/7/2017. February 20, 2017 being an official federal holiday, oral argument on the motions set for 2/20/2017 is stricken and reset to 2/21/2017 at 01:30 PM.Mailed notice (rth, ) (Entered: 02/06/2017)
2017-02-07	49	RESPONSE by James Chelmowskiin Opposition to MOTION by Defendant Federal Communication Commission for summary judgment 35 Corrected with Leave by the Court (Chelmowski, James) (Entered: 02/07/2017)
2017-02-13	50	REPLY by James Chelmowski to response to motion 43 , memorandum in support of motion 40 , memorandum in support of motion 39 , MOTION by Plaintiff James Chelmowski for summary judgment 38 , memorandum in support of motion 41 (Attachments: # 1 Exhibit Selected Exhibits from FCC exhibits in Record of the Court)(Chelmowski, James) (Entered: 02/13/2017)
2017-02-21	51	MINUTE entry before the Honorable Sharon Johnson Coleman: Motion hearing held on 2/21/2017. Cross motions for summary judgment 35 38 are taken under advisement. Mailed notice (rth, ) (Entered: 02/21/2017)
2017-02-24	52	MINUTE entry before the Honorable Sharon Johnson Coleman: The FCC's motion for summary judgment 35 is granted in part and denied in part and Chelmowski's motion for summary judgment 38 is granted in part and denied in part. Enter Memorandum Opinion and Order. Civil case terminated. Mailed notice (rth, ) (Entered: 02/24/2017)
2017-02-24	53	MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/24/2017:Mailed notice(rth, ) (Entered: 02/24/2017)
2017-02-24	54	ENTERED JUDGMENT Signed on 2/24/2017:Mailed notice(rth, ) (Entered: 02/24/2017)
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