Wilbur v. Cent. Intelligence Agency, 355 F.3d 675 (D.C. Cir. 2004). · Go Syfert
Wilbur v. Cent. Intelligence Agency, 355 F.3d 675 (D.C. Cir. 2004). Cases Citing This Book View Copy Cite
Quick Summary

Exhaustion of administrative remedies is a prudential doctrine rather than a jurisdictional prerequisite for judicial review under the Freedom of Information Act.

A requester filed a Freedom of Information Act lawsuit after submitting a late administrative appeal regarding a search for personal records. The question is whether the requester's failure to comply with the agency's appeal deadline barred judicial review. Although exhaustion of administrative remedies is generally required to allow an agency to exercise its expertise and build a factual record, exhaustion is a prudential doctrine rather than a jurisdictional prerequisite. Because the agency accepted and processed the late appeal, the purposes of exhaustion were served. Furthermore, the agency's failure to locate specific documents does not undermine a determination that a reasonable search was conducted. The court affirmed the grant of summary judgment for the agency.

687 citation events (687 in the last 25 years) across 30 distinct courts.
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Cited for
At page 677 Exhaustion of administrative remedies under FOIA200 citing cases“exhaustion of administrative remedies is generally required before seeking judicial review”46 citing courts quote it · 188 listed here
  • Magassa v. Transp. Sec. Admin., No. 2019-1953 (D.D.C. Mar. 31, 2022).published 2 cites
    ([E]xhaustion of a FOIA request is not jurisdictional because the FOIA does not unequivocally make it so[.])
  • Stonehill v. United States Dep't of Just. Tax Div., No. 2019-3770, 2022 WL 407145 (D.D.C. Feb. 10, 2022).published
    ([FOIA] exhaustion is a prudential consideration rather than a jurisdictional prerequisite . . . .)
  • Schotz v. United States Dep't of Just., 216 F. Supp. 3d 30 (D.D.C. 2016).published
    ([T]he FOIA’s administrative scheme ‘favors treating failure to exhaust as a bar to judicial review.’)
  • Hull v. IRS, US Dept. of Treasury, 656 F.3d 1174 (10th Cir. 2011).published 4 cites
    (Wilbur then availed himself of the right to seek judicial review as the CIA told him he could.)
  • Monikang v. U.S. Equal Emp. Opportunity Comm'n, No. 2025-3351 (D.D.C. Sept. 18, 2026).published 3 cites
    Agency, 355 F.3d 675, 677 (D.C. Cir. 2004) (per curiam); see Dettmann v. Dep’t of Justice, 802 F.2d 1472 , 1476-77 (D.C. Cir. 1986) (“It goes without saying that exhaustion of remedies is required in FOIA cases.
  • Bennett v. United States Postal Serv., No. 2024-3668 (D.D.C. Mar. 11, 2026).published 2 cites
    Agency, 355 F.3d 675, 677 (D.C.
  • Protect the Pub.'s Trust v. United States Agency for Int'l Dev., No. 2025-0333 (D.D.C. Mar. 6, 2026).published
    Agency, 355 F.3d 675, 677 (D.C.
  • Legal Eagle, LLC v. Dep't of Just., No. 2024-3316 (D.D.C. Jan. 6, 2026).published 2 cites
    “A court may waive the exhaustion requirement if doing so will not ‘undermin[e] the purposes and policies underlying the exhaustion requirement, namely, to prevent premature interference with agency processes, to give the parties and the c…
  • Levigne, No. 2:25-cv-01816 (W.D. Wash. Oct. 31, 2025).
    (Under FOIA, 5 “[e]xhaustion of administrative remedies is generally required before seeking judicial review ‘so 6 that the agency has an opportunity to exercise its discretion and expertise on the matter and to 7 make a…)
  • Schubert v. Fed. Bureau of Prisons, No. 2023-3509 (D.D.C. Aug. 28, 2025).published 2 cites
    Exceptions exist where the “purposes and policies” underlying the exhaustion requirement “have been served.” Wilbur v. CIA, 355 F.3d 675, 677 (D.C.
Show 178 more citing cases
At page 678 Agency duty to retain records and adequacy of search162 citing cases“the agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.”37 citing courts quote it · 140 listed here
  • Della Rocca v. United States Postal Serv., No. 2022-0786 (D.D.C. July 1, 2025).published
    ([T]he agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the reques…)
  • Francis v. United State of Am., No. 2020-1392 (D.D.C. Mar. 14, 2025).published
    ([An] agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that [it] conducted an adequate search[.])
  • Stoufer v. Fed. Bureau of Investigation, No. 3:20-cv-00046 (D. Alaska Apr. 27, 2021).
    (Likewise, the agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for th…)
  • Montgomery v. Internal Revenue Serv., 514 F. Supp. 3d 125 (D.D.C. 2021).published 2 cites
    ([T]he fact that responsive documents once existed does not mean that they remain in the [agency’s] custody today or that the [agency] had a duty under FOIA to retain the records.)
  • Carlborg v. Dep't of the Navy, No. 2018-1881 (D.D.C. Aug. 10, 2020).published
    ([T]he agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the reques…)
  • Huntington v. U.S. Dep't of Com., 234 F. Supp. 3d 94 (D.D.C. 2017).published
    ([T]he agency’s failure to turn up a particular document .., does not undermine the determination that the agency conducted' an adequate search for .the requested records.)
  • North v. United States Dep't of Just., 774 F. Supp. 2d 217 (D.D.C. 2011).published 2 cites
    ([T]he agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the reques…)
  • Cooper v. Stewart, 763 F. Supp. 2d 137 (D.D.C. 2011).published
  • Leopold v. Cent. Intelligence Agency, No. 2016-1833 (D.D.C. July 21, 2026).published
    ([T]he agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the reques…)
  • Bates v. U.S. Dep't of Just., No. 2025-1277 (D.D.C. July 7, 2026).published 2 cites
    “failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search”
Show 130 more citing cases
At page 676 Exhaustion of administrative remedies as a prerequisite to FOIA lawsuit52 citing casesexhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA3 citing courts put it this way · 51 listed here
  • Magassa v. Transp. Sec. Admin., No. 2019-1953 (D.D.C. Mar. 31, 2022).published 2 cites
    Cir. 2003)); see also Wilbur, 355 F.3d at 677 (“[E]xhaustion of a FOIA request is not jurisdictional because the FOIA does not unequivocally make it so[.]”) (internal citation and quotation marks omitted).
  • Wilson v. U.S. Dep't of Transp., 730 F. Supp. 2d 140 (D.D.C. 2010).published 2 cites
    (exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA)
  • Martin, No. 3:26-cv-00106 (E.D. Va. June 3, 2026).
    “Before commencing litigation, a requester must ordinarily exhaust administrative remedies by appealing an issue through the FOIA administrative process following an initial adverse determination by the agency.” Coleman v. Drug Enforcement…
  • Martin, No. 3:26-cv-00106 (E.D. Va. Mar. 31, 2026).
    “Before commencing litigation, a requester must ordinarily exhaust administrative remedies by appealing an issue through the FOIA administrative process following an initial adverse determination by the agency.” Coleman v. Drug Enforcement…
  • Brook v. Holzerland, No. 25-40014 (5th Cir. Aug. 7, 2025).unpublished
    La. 2013) (citing Wilbur v. CIA, 355 F.3d 675, 676 (D.C. Cir. 2004)); see also Voinche v. U.S. Dep’t of Air Force, 983 F.2d 667, 669 (5th Cir. 1993) (requiring “proof of exhaustion of administrative remedies prior to seeking judicial revie…
  • Gebert v. Dep't of State, No. 2022-2939 (D.D.C. Jan. 6, 2025).published
    “exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA”
  • McKathan v. United States Dep't of Homeland Sec., No. 2022-1865, 2024 WL 1344434 (D.D.C. Mar. 29, 2024).published
    “exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA”
  • Alaska Airlines, Inc. v. United States Dep't of Transp., 575 F.3d 750 (D.C. Cir. 2009).published
  • Coleman v. Drug Enf't Admin., 714 F.3d 816 (4th Cir. 2013).published
  • Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008).published
Show 41 more citing cases
Retrieving the full opinion text from the archive…
Robert WILBUR, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY, Appellee
03-5142.
Court of Appeals for the D.C. Circuit.
Jan 30, 2004.
Published opinion
355 F.3d 675
2004 U.S. App. LEXIS 1399
2004 WL 177445
Robert Wilbur pro se., Roscoe E. Howard, Jr., United States Attorney, and R. Craig Lawrence and Wy-neva Johnson, Assistant United States Attorneys, were on motion for summary af-firmance.
Henderson, Per Curiam, Randolph, Tatel.
Cited by 393 opinions  |  Published

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Appellant Robert Wilbur appeals the district court’s summary judgment in favor of the Central Intelligence Agency (CIA). Wilbur v. CIA, 273 F.Supp.2d 119 (D.D.C. 2003). Wilbur brought this action under the Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 et seq., seeking information[*676] pertaining to himself. The district court correctly held that the CIA satisfied its obligation under the FOIA to search for records responsive to Wilbur’s request. Accordingly, we affirm the district court’s judgment on that ground, concluding that the-court had subject matter jurisdiction to decide the issue.

I.

Because the district court’s memorandum opinion lays out the factual background in detail, we summarize only briefly the facts material to our decision. In February 1994 Wilbur submitted a FOIA request through counsel, seeking records regarding him maintained by the CIA, and subsequently provided the biographical data, privacy waiver and certification of identity the CIA requires to process a request. Following a search of the record systems maintained by the CIA’s Directorate of Operations and Directorate of Administration, on June 28, 1994 the CIA issued its initial decision advising Wilbur that the agency was unable to identify any information or records filed under his name and informing him of his appeal rights.

Wilbur did not file an appeal until January 4, 1999. Two weeks later the CIA notified Wilbur that his request for appeal of the 1994 determination had been received and accepted for consideration by the Agency Release Panel. On September 14, 2000 Wilbur was advised that the agency had located no responsive documents after examining the initial searches by the Directorate of Operations and the Directorate of Administration and conducting a new search of the Director of Central Intelligence area.

On February 28, 2001, proceeding pro se, Wilbur filed suit in the district court. The CIA moved to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) based on Wilbur’s failure to exhaust administrative remedies within the time specified by the agency’s FOIA regulations and failure to comply with the federal statute of limitations for civil actions. Alternatively, the government moved for summary judgment, which the district court granted.

At the outset the district court correctly observed that “exhaustion of administrative remedies is a mandatory prerequisite to a lawsuit under FOIA,” which “means that a requester under FOIA must file an administrative appeal within the time limit specified in an agency’s FOIA regulations or face dismissal of any lawsuit complaining about the agency’s response.” 273 F.Supp.2d at 123 (citing Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 61-64 65 n. 9 (D.C.Cir.1990)). The CIA’s FOIA regulations require that any administrative appeal be received within 45 days of the agency’s initial decision. 32 C.F.R. § 1900.42. Thus, the district court reasoned, Wilbur’s appeal, which was dated January 4, 1999, more than four years after the initial CIA determination, “was late — as if it were never filed at all — and [Wilbur] can be deemed to have failed to exhaust his administrative appeal rights.” Wilbur, 273 F.Supp.2d at 123. Accordingly, the district court concluded it “ha[d] sufficient grounds to grant the CIA’s motion to dismiss under Rule 12(b)(1).” Id. at 123-24. Nonetheless, the court declined to dismiss the complaint and proceeded to address the CIA’s alternative motion for summary judgment “due to the fact that the CIA accepted Mr. Wilbur’s very late-filed appeal and treated it as if it were timely.” Id. at 124 (emphasis original). Based on the agency’s affidavits, the district court determined the CIA had “conducted a thorough, reasonable, good-faith search of the CIA components that were reasonably likely to maintain records of[*677] the type sought by Mr. Wilbur” and was entitled to judgment as a matter of law. Id. at 124-25.

II.

Exhaustion of administrative remedies is generally required before seeking judicial review “so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Oglesby, 920 F.2d at 61. Although exhaustion of a FOIA request “is not jurisdictional because the FOIA does not unequivocally make it so,” Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C.Cir.2003) (citing I.A.M. Natl, Pension Fund Ben. Plan C. v. Stockton TRI Indus., 727 F.2d 1204, 1208 (D.C.Cir.1984)), still “as a jurisprudential doctrine, failure to exhaust precludes judicial review if ‘the purposes of exhaustion’ and the ‘particular administrative scheme’ support such a bar,” Hidalgo, 344 F.3d at 1258-59 (quoting Oglesby, 920 F.2d at 61).

As we held in Hidalgo, the FOIA’s administrative scheme “favors treating failure to exhaust as a bar to judicial review.” See Hidalgo, 344 F.3d at 1259 (construing 5 U.S.C. §§ 552(a)(6)(A) & citing cases). Moreover, many agencies, including the CIA, require that an administrative appeal be filed within a time specified in the agency’s regulations in order to satisfy the FOIA exhaustion requirement. See Ogles-by, 920 F.2d at 65 n. 9; 32 C.F.R. § 1900.42 (CIA regulation stating: “Appeals of decisions must be received by the Coordinator within forty-five (45) days of the date of the Agency’s initial decision. The Agency may, for good cause and as a matter of administrative discretion, permit an additional thirty (30) days for the submission of an appeal.”).

Wilbur stands on a different footing from Hidalgo with respect to the second jurisprudential factor. This action presents no risk of undermining the purposes and policies underlying the exhaustion requirement, namely, to prevent premature interference with agency processes, to give the parties and the courts benefit of the agency’s experience and expertise and to compile an adequate record for review. See Hidalgo, 344 F.3d at 1259 (citing Ryan v. Bentsen, 12 F.3d 245, 247 (D.C.Cir.1993) (citing Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975))). Wilbur did not bypass the administrative review process but pursued it to its end; he was simply late (albeit four years late). Nevertheless, the CIA accepted the appeal, processed it, reviewed the initial determination and issued a final decision upholding the agency’s prior determination. Wilbur then availed himself of the right to seek judicial review as the CIA told him he could. In these circumstances, the policies underlying the exhaustion requirement have been served. See Oglesby, 920 F.2d at 61-65; Hidalgo, 344 F.3d at 1259-60. Accordingly, we conclude that, because exhaustion is a prudential consideration rather than a jurisdictional prerequisite, the district court was not precluded under these circumstances from deciding the merits of Wilbur’s FOIA claim notwithstanding his failure to comply with the CIA’s FOIA appeal deadline. *

Having concluded that judicial review of the FOIA decision merits is not[*678] barred, we affirm the grant of summary judgment substantially for the reasons stated by the district court. See Wilbur, 273 F.Supp.2d at 124-25. Contrary to Wilbur’s assertion on appeal, the fact that responsive documents once existed does not mean that they remain in the CIA’s custody today or that the CIA had a duty under FOIA to retain the records. See Yeager v. Drug Enforcement Admin., 678 F.2d 315, 321 (D.C.Cir.1982) (“A requester is entitled only to records that an agency has in fact chosen to create and retain.”); Miller v. United States Dep’t of State, 779 F.2d 1378, 1385 (8th Cir.1985) (“The fact that a document once existed does not mean that it now exists; nor does the fact that an agency created a document necessarily imply that the agency has retained it.”). Likewise, 'the agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 314 (D.C.Cir.2003); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991). In sum, the CIA met its burden on summary judgment to “demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Nation Magazine v. United States Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995). Accordingly, the judgment of the district court is

Affirmed.

*

Were the exhaustion requirement jurisdictional, this failure would bar judicial review of the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting "hypothetical jurisdiction” doctrine under which court assumes subject-matter jurisdiction for sake of deciding merits).