UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN PROPERTY LOCATORS, INC.,

Plaintiff,

v. Civil Action No. 24-cv-00379 (TSC)

UNITED STATES CUSTOMS AND BORDER PROTECTION,

Defendant.

MEMORANDUM OPINION

Plaintiff American Property Locators, Inc., sues the United States Customs and Border

Protection (“CBP”) under the Freedom of Information Act (“FOIA”),

. Because

Plaintiff submitted a commercial use FOIA request for financial records submitted by third

parties to CBP, CBP provided a fee estimate to search, duplicate, and review the records. The

fee estimate included review time associated with the business submitter process, which CBP

may apply to FOIA requests seeking commercial information that CBP obtained from third-party

businesses or individuals. Plaintiff challenges CBP’s fee estimate, arguing that the business

submitter process should not apply. Defendant has moved to dismiss or, in the alternative, for

summary judgment, ECF No. 6. Because Defendant’s decision to apply the business submitter

process was reasonable, the court will GRANT Defendant’s motion.

I. BACKGROUND

Plaintiff, an asset recovery company, routinely files FOIA requests for financial records

regarding checks CBP issues to private third parties (the “payees”). See Compl. ¶ 5; Pl.’s Mem.

in Supp. of Pl.’s Opp’n to Def.’s Mot. at 5–6, ECF No. 8-4 (“Pl.’s Opp’n”). The United States

Page 1 of 15 Department of Treasury automatically cancels checks that have been outstanding for one year

and returns the funds to the originating agency. Decl. of Patrick A. Howard ¶ 19, ECF No. 6-4

(“Howard Decl.”); Limited Payability Cancellation, U.S. Department of the Treasury,

https://tfx.treasury.gov/taxonomy/term/10593. The cancelled checks are then considered “stale

dated.” Howard Decl. ¶ 5. To obtain payment, the payee must request a reissuance or

replacement check from the originating agency. See Pl.’s Opp’n at 7–8.

Plaintiff obtains stale check and payee information from public reports filed by the

Department of Treasury’s Bureau of Fiscal Services. Decl. of Ronnie Braun Leppke ¶ 7, ECF

No. 8-2 (“Leppke Decl.”); Howard Decl. ¶ 19. The public reports identify the payee, check

number, check date, and check amount, but do not reveal “whether checks have or have not been

reissued.” Pl.’s Opp’n at 24; Def.’s Reply to Pl.’s Statement of Material Facts at 5–6, ECF No.

9-1 (“Def.’s SOF Reply”). 1 To determine whether the checks have already been reissued,

Plaintiff submits FOIA requests to the originating agency—here, CBP—for “records showing or

depicting information about canceled checks,” including whether the checks have been replaced.

Compl. Ex. 101—FOIA Request at 3, ECF No. 1-2. Using the information provided in response

to its FOIA requests, Plaintiff attempts to coordinate a check reissuance to the payee prior to the

statutory deadline to recover funds. Leppke Decl. ¶ 3; Howard Decl. ¶ 19. If Plaintiff seeks

confidential information on behalf of a client, it includes a power of attorney or other indication

that the payee consents to Plaintiff’s request. Howard Decl. ¶ 2; Leppke Decl. ¶ 7.

On September 25, 2023, Plaintiff submitted the FOIA request at issue here. Howard

Decl. ¶ 18. The request attached two lists of stale checks—identified by check number, check

date, check amount, payee ID, check symbol, payee name, and address. Compl. Ex. 101 at 7–20.

1 For all filings lacking page numbers, the page cited is the page of the PDF file.

Page 2 of 15 For the 108 identified stale checks, Plaintiff requested all: (1) “records showing or depicting

funds from [CBP] which attempt to return funds to any person or entity” in the attached lists; (2)

“checks which have been issued by CBP which have been replaced by CBP;” (3) “checks which

have been issued by CBP which remain in their canceled status;” (4) “records showing or

depicting information about canceled checks;” and (5) “records showing or depicting that status

of funds of persons or entities” in the attached lists.

. 2 CBP confirmed receipt on October

20, 2023, and issued a fee estimate on October 26, 2023. Leppke Decl. ¶¶ 20–21. Because

Plaintiff is a “commercial requester,”

; Def.’s SOF Reply at 4; CBP may charge fees “for

document search, duplication, and review,”

(a)(4)(a)(ii). The fee estimate totaled

$738.00 based on 18 hours of managerial time at an hourly rate of $41 for “search, review, and

[the] business submitter process.” Leppke Decl. ¶ 21 (quoting Compl. Ex. 103 at 2, ECF No. 1-

7); Howard Decl. ¶¶ 21–23.

CBP’s business submitter process applies to FOIA requests seeking “[c]ommercial

information,” defined as trade secret, commercial, or financial information, “provided to CBP by

a business submitter.”

(a). Pursuant to CBP’s regulations, it must promptly

notify business submitters of FOIA requests “encompass[ing] their commercial information”

when (i) the business submitter “in good faith designated the information as commercially- or

financially-sensitive information,” or (ii) “CBP has reason to believe that disclosure of the

commercial information could reasonably be expected to cause substantial competitive harm.”

§ 5.12(b). CBP allows the business submitter to object to disclosure and provide any grounds

2 Although only the first and last category explicitly limit Plaintiff’s request to records related to the 108 identified stale checks, both parties generally view Plaintiff’s request as limited to records concerning the listed stale checks. Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. at 9, ECF No. 6-1 (“Def.’s Mot.”); Pl.’s Opp’n at 21–22.

Page 3 of 15 for withholding the information under FOIA’s exemptions. Id. § 5.12(c). Prior to October 2020,

CBP generally did not apply the business submitter process to “similar stale dated check FOIA

requests.” Howard Decl. ¶ 32. After reviewing its regulations, CBP determined the business

submitter process should apply those requests. Id. And, in September 2020, it notified “frequent

requestors,” id., including Plaintiff, of the change to the “FOIA process to request Limited

Payability (stale dated check) records,” Def.’s Ex. H—FOIA Request, ECF No. 6-12.

The fee estimate letter for the request at issue here notified Plaintiff that it could “contest

CBP’s fee estimate . . . by filing an appeal within 30 days.” Compl. Ex. 103 at 3. On November

13, 2023, Plaintiff filed an administrative appeal, arguing that (1) the business submitter process

should not apply, (2) the proper appeal period was ninety days, and (3) CBP failed to conduct an

adequate search or issue a determination within twenty days. See Leppke Decl. ¶ 22; Compl. Ex.

104 at 3–8, ECF No. 1-8. CBP issued a final determination on December 12, 2023. Leppke

Decl. ¶ 24; Def.’s SOF Reply at 7. It found the business submitter process applied because the

requested records constitute “confidential commercial or financial information that is unique to

the specific business submitter, and as such, the business submitter should be afforded the

opportunity to weigh in on the release of its information.” Compl. Ex. 106 at 6, ECF No. 1-10;

see also Def.’s SOF Reply at 7–8. CBP also found that it “in fact undercharged for the fees”

because its calculation omitted the staff time associated with the search, but it nonetheless

honored the original $738 estimate. Compl. Ex. 106 at 6. Because Plaintiff’s FOIA request was

“still open and pending . . . and no final determination has been made,” CBP did not address

Plaintiff’s search adequacy arguments. Id. at 4. CBP noted that Plaintiff was correct that the

appropriate appeal period was ninety days, but it concluded that remanding the matter to issue a

Page 4 of 15 fee estimate letter with the appropriate appeal period would only “penalize [Plaintiff by] creating

additional delays.” Id. at 5.

CBP remanded Plaintiff’s request to the FOIA division for processing upon receipt of the

fee, but informed Plaintiff that it could “obtain judicial review” of the determination under

(a)(4)(B).

at 6–7. Because Plaintiff failed to pay the fee within thirty days of

the appeal decision, CBP closed the request. Def.’s SOF Reply at 8–9. Plaintiff filed the

Complaint on February 8, 2024. ECF No. 1. It seeks judicial review of CBP’s fee estimate

determination and alleges that CBP failed to conduct a reasonable search or produce responsive

records.

, 27–30.

II. LEGAL STANDARD

Because the court will rely on matters beyond the pleadings, including evidence

submitted by both parties, it will proceed under the standards for summary judgment. See Fed.

R. Civ. P. 12(d); see also Rios v. United States,

(D.D.C. 2017). Summary

judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,

(1986); Waterhouse v. District of Columbia,

(D.C. Cir.

2002) (citation omitted). A factual dispute is “material” if the facts involved “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

(1986). A “dispute about a material fact is ‘genuine’. . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Courts “must view all facts,

and draw all reasonable inferences, in the light most favorable to the party opposing the motion.”

Lane v. District of Columbia,

(D.C. Cir. 2018) (citing Matsushita Elec. Indus.

Co. v. Zenith Radio,

(1986)).

Page 5 of 15 “FOIA cases are typically and appropriately decided on motions for summary judgment.”

Calderon v. U.S. Dep’t of Agric.,

(D.D.C. 2017) (citing Brayton v. Off.

of the U.S. Trade Rep.,

(D.C. Cir. 2011)). “FOIA provides a ‘statutory right

of public access to documents and records’ held by federal government agencies.” Citizens for

Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

(D.D.C. 2009) (quoting

Pratt v. Webster,

(D.C. Cir. 1982)). “FOIA permits an agency to exact a

reasonable charge for ‘document search, duplication, and review, when records are requested for

commercial use.’” Cause of Action v. FTC,

(D.C. Cir. 2015) (quoting

(a)(4)(A)(ii)(I)). An agency may reduce or waive fees “if disclosure of the

information is in the public interest . . . and is not primarily in the commercial interest of the

requester” or the request is made by “a representative of the news media.”

(quoting

(a)(4)(A)(ii)–(iii)). Agencies must promulgate regulations “specifying the schedule of fees

applicable to the processing of requests . . . and establishing procedures and guidelines for

determining when such fees should be waived or reduced.”

(a)(4)(A)(i).

District courts review agency FOIA decisions de novo.

(a)(4)(A)(vii),

552(a)(4)(B); Al-Fayed v. CIA,

, 305–07 (D.C. Cir. 2001). Defendant urges the

court to apply a more deferential standard—either arbitrary-and-capricious review, under which

courts presume the validity of agency action so long as it is “reasonable and reasonably

explained,” Ramsingh v. Transp. Sec. Admin.,

, 631–32 (D.C. Cir. 2022), or Auer

deference, under which courts defer to an agency’s reasonable interpretation of its genuinely

ambiguous regulation, Kisor v. Wilkie,

, 573–78 (2019). See Def.’s Mot. to Dismiss

or, in the Alternative, Mot. for Summ. J. at 12–14, ECF No. 6 (“Def.’s Mot.”). Defendant

advocates for a deferential standard because the dispute involves CBP’s interpretation of its own

Page 6 of 15 FOIA regulations.

The court declines to depart from the well-established practice of de novo

review in FOIA cases. “Unlike the review of other agency action that must be upheld if

supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the

burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter

de novo.’” Dep’t of Just. v. Reps. Comm. for Freedom of Press,

(1989) (citing

(a)(4)(B)); see also Goldstein v. IRS,

(D.D.C. 2016).

Congress specifically provided that de novo review applies to actions brought under

(a)(4)(B)—the provision CBP identified as authorizing judicial review here. Compl. Ex. 106

at 7;

(a)(4)(B) (“[T]he court shall determine the matter de novo . . . whether such

records or any part thereof shall be withheld under any of the exemptions . . . and the burden is

on the agency to sustain its action.”). “Courts owe no deference to agency regulations

interpreting the FOIA but may consult such regulations to the extent they are helpful and not

inconsistent with the statutory text.” Liberman v. Dep’t of Transp.,

(D.D.C.

2016) (citing Cause of Action,

); see also Al-Fayed, 254 F.3d at 305–07

(“[B]ecause FOIA’s terms apply government-wide [] we generally decline to accord deference to

agency interpretations of the statute, as we would otherwise do.”). Based on FOIA’s text, as

interpreted by the Supreme Court and the D.C. Circuit, this court reviews the matter de novo.

III. ANALYSIS

A. Excessive Fees

Typically, plaintiffs challenge agency delays in processing or producing records, the

adequacy of the search, or the withholding of certain information. See, e.g., Kowal v. Dep’t of

Just.,

, 1026–27 (D.C. Cir. 2024). Occasionally, plaintiffs challenge an agency’s

determination regarding a fee waiver. See, e.g., Cause of Action,

. The parties’

fee dispute does not neatly fit into these traditional FOIA actions. Although Plaintiff challenges Page 7 of 15 CBP’s fee amount, Pl.’s Opp’n at 19–25, it does not argue that it is entitled to a fee waiver,

Leppke Decl. ¶ 29. The parties agree that Plaintiff is a “commercial requester,”

meaning

CBP may impose “reasonable standard charges for document search, duplication, and review,”

(a)(4)(A)(ii)(I); see Def.’s SOF Reply at 4. Plaintiff instead challenges CBP’s

decision to apply the business submitter process, resulting in a higher fee. Pl.’s Opp’n at 19–26.

It argues that the “business submitter process does not apply to the instant FOIA request” and

asks the court to “order CBP to reassess fees without the business submitter process.”

.

Defendant maintains that the business submitter process applies and the fee estimate

appropriately includes the associated review time. Def.’s Mot. at 16, 20. The parties agree that

Plaintiff exhausted administrative appeal remedies as to CBP’s fee determination. Def.’s Reply

in Supp. of Def.’s Mot. at 6, ECF No. 9 (“Def.’s Reply”).

The question therefore is whether CBP properly concluded that the business submitter

process applied to Plaintiff’s request. For “commercial use” requests, FOIA contains “two

salient limitations on the fees an agency can charge requesters.” Nat’l Sec. Couns. v. U.S. Dep’t

of Just.,

(D.C. Cir. 2017). Fees must be (1) “limited to reasonable standard

charges,” and (2) the agency “may recover ‘only the direct costs of search, duplication, and

review.’”

(quoting

(a)(4)(A)(ii), (iv)). For the reasons explained below, the

court is persuaded that CBP’s business submitter process complies with FOIA’s fee limitations

and was properly applied to Plaintiff’s requests.

i. Reasonable Standard Charges As the D.C. Circuit recently explained in National Security Counselors v. Department of

Justice, an agency’s policy violates FOIA’s “reasonable standard charges” limitation if it

“giv[es] rise to an improper inflation of fees that effectively denies access to requesters.”

. If the agency provides “a reasonable, non-obstructionist explanation” for the policy,

Page 8 of 15 however, it does not violate FOIA’s reasonable-charge mandate, even if “the policy may, to

some degree, increase the cost of disclosure.” Id.; see also Clemente v. FBI,

(D.C. Cir. 2017) (“An agency thus of course cannot impose requirements on requesters that take

on the character of a shell game, imposing unwarranted burdens on requesters without apparent

justification.”); Elec. Priv. Info. Ctr. v. IRS,

(D.D.C. 2017) (“[U]pfront

procedures are permissible so long as they are ‘reasonable.’” (quoting Clemente, 867 F.3d at

118–19)), aff'd,

(D.C. Cir. 2018).

Here, CBP “has come forward with a reasonable, non-obstructionist explanation,”

, for applying the business submitter process. CBP relies on its own regulations to

justify its decision. Def.’s Mot. at 16–20. Pursuant to

, CBP may apply the

business submitter process whenever a FOIA request seeks “‘commercial information,’ []

defined as trade secret, commercial, or financial information obtained from a person,” including

business submitters, unless an exception applies, namely the information will not be disclosed,

the information is already available to the public, or disclosure is required by law.

(a), (b)(2). CBP must apply the business submitter process whenever (1) the “business

submitter has in good faith designated the information as commercially- or financially-sensitive

information,” or (2) “CBP has reason to believe that disclosure of the commercial information

could reasonably be expected to cause substantial competitive harm.”

§ 5.12(b)(1).

CBP reasonably concluded that Plaintiff’s FOIA request sought business submitters’

“commercial information” and the exceptions precluding the business submitter process did not

apply. “Information is commercial if it pertains to the exchange of goods or services or the

making of a profit.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

,

1263 (D.C. Cir. 2023). On its face, Plaintiff’s FOIA request seeks financial information—it

Page 9 of 15 states “THIS IS A REQUEST FOR FINANCIAL RECORDS” in bold, underlined, capital letters

on the first page. Compl. Ex. 101 at 2. Specifically, Plaintiff requests “[a]ll records showing or

depicting the status of funds of persons or entities in the attached” lists.

. CBP explains

that this request may encompass emails between CBP and business submitters regarding the

original commercial transaction, the status of payee checks, the occurrence of novel financial

transactions, and/or bank account information. Def.’s Mot. at 16–17; Def.’s Reply at 13–15.

Courts have found similar records qualify as commercial information. See e.g., Citizens for

Resp. & Ethics in Wash. v. Dep’t of Just.,

, 121–22 (D.D.C. 2024) (Records

that “reveal that contractors have sold a product and/or service to the government, thereby

‘actually revea[ling] basic commercial operations’ of the contractors” are commercial

information (quoting Pub. Citizen Health Rsch. Grp. v. FDA,

(D.C. Cir.

1983))). Plaintiff attempts to narrow its request to exclude any commercial information, arguing

it only seeks “status updates to stale dated checks” listed in the attachments. Pl.’s Opp’n at 20–

23. Even accepting Plaintiff’s rewrite, status updates on particular financial transactions may

still constitute commercial information. See Citizens for Resp. & Ethics in Wash., 728 F. Supp.

3d at 121–22. Moreover, the court reads a FOIA request “as drafted, not as either agency

officials or [the requester] might wish it was drafted.” Nat’l Sec. Couns. v. CIA,

,

410 (D.C. Cir. 2020) (quoting Miller v. Casey,

(D.C. Cir. 1984)). The court

will not retroactively narrow Plaintiff’s FOIA request to circumvent CBP procedures. If Plaintiff

seeks a narrower category of records, which may or may not require the business submitter

process, it must draft its FOIA request accordingly.

With regard to the exceptions to the business submitter process under CBP’s regulations,

(b)(2), neither party identifies any law mandating disclosure, but Plaintiff argues

Page 10 of 15 that the other two exceptions—that the information will not be disclosed or is already public—

preclude the business submitter process. Pl.’s Opp’n at 23–26. This argument is unavailing.

Plaintiff concedes that it requests some information that may fall under Exemption 4, but argues

that, for those records, CBP is “compelled . . . to forgo” the business submitter process because it

will withhold the records.

. To the contrary, it is unclear whether CBP could justify any

withholdings under Exemption 4 absent the business submitter process. Exemption 4 applies to

“information [that] is ‘(1) commercial or financial, (2) obtained from a person, and (3) privileged

or confidential.’” Citizens for Resp. & Ethics in Wash., 58 F.4th at 1262 (quoting Pub. Citizen,

). Information is only confidential if the submitting party customarily and

actually treats the information as private. Food Mktg. Inst. v. Argus Leader Media,

, 434 (2019). The key inquiry under Exemption 4 is “how the particular party customarily

treats the information, not how the industry as a whole treats the information.” Ctr. for Inquiry,

Inc. v. Dep’t of Health and Hum. Servs.,

, 61 (D.D.C. 2024) (quoting Ctr. for

Auto Safety v. Nat’l Highway Traffic Safety Admin.,

(D.C. Cir. 2001)).

Accordingly, courts frequently rely on information from business submitters regarding their

particular practices, see, e.g., Argus Leader, 588 U.S. at 434; Renewable Fuels Assoc. v. EPA,

, 10–11 (D.D.C. 2021), and have criticized agencies for failing to contact the

submitting entity, WP Co. v. U.S. Small Bus. Admin., No. 20-cv-1240,

, *5

(D.D.C. July 15, 2021). Therefore, the possibility that Exemption 4 applies justifies, rather than

precludes, the business submitter process.

On this record, Plaintiff’s FOIA request encompasses at least some information that is not

publicly available. The parties agree that some information requested by Plaintiff is public, such

as the payee name, payee address, payee ID number, check number, and check amount, which

Page 11 of 15 Plaintiff obtains from the Department of Treasury’s public reports. Def.’s SOF Reply at 5;

Leppke Decl. ¶ 7. But not all the information is publicly available. Specifically, “the fact that a

replacement check was or was not requested by the business and reissued by the government is a

new transaction not yet publicly available.” Def.’s Reply at 14. Accordingly, CBP’s regulations

do not preclude the business submitter process.

Having shown that the business submitter process was permitted, CBP has also provided

a reasonable explanation for concluding its regulations mandated the process. CBP states that it

had “reason to believe that disclosure of the commercial information could reasonably be

expected to cause substantial competitive harm.” Def.’s Mot. at 17 (quoting

(b)(1)(ii)). In support, it identifies “objections from specific businesses . . . to the release of

this type of information” based on potential harm.

For instance, one business submitter

explained that competitors could use the information to determine the business submitter’s costs.

(quoting Def.’s Ex. G, ECF No. 6-11). And CBP need not demonstrate, as Plaintiff contends,

that substantial competitive harm is “likely.” Pl.’s Opp’n at 22. Rather, CBP’s regulations only

require a “reason to believe” that disclosure “could reasonably be expected to cause substantial

competitive harm.”

(b)(1)(ii). CBP has explained why Plaintiff’s request cleared

this low bar.

Finally, the court finds that the process itself is reasonable, even though it may increase

the costs of disclosure. The process “give[s] effect to Exemption 4” by allowing CBP to

“consider carefully a business submitter’s objections . . . prior to determining whether to disclose

commercial information.” Def.’s Mot. at 2–4. That CBP previously did not apply the business

submitter process to Plaintiff’s requests does not make its application here unreasonable. See

Nat’l Sec. Couns.,

(finding reasonable policy that agency occasionally exercises

Page 12 of 15 discretion to waive); August v. FBI,

(D.C. Cir. 2003) (refusing to order

disclosure when government “changed its policy for the review of FOIA requests to ensure that

all applicable exemptions are raised at the outset.”) Therefore, CBP’s regulations and Exemption

4’s requirements provide “a reasonable, non-obstructionist explanation” for the business

submitter process. Nat’l Sec. Couns.,

.

ii. Direct Costs of Search, Duplication, or Review On the record before it, the court has no reason to doubt that CBP’s fee estimate seeks to

recover only “direct costs of search, duplication, or review.”

(a)(4)(A)(iv). An

agency must “provide a sufficient factual basis” for the court to determine that “the fees assessed

under the [] policy do not exceed direct costs.” Nat’l Sec. Couns.,

. CBP’s

declaration clearly explains the fee estimate calculation. Howard Decl. ¶¶ 21-23. CBP assigns

hourly rates to the individuals performing the work. Id. ¶ 21. The rate for professional time is

$28/hour and managerial time is $41/hour. Id. Based on the 108 checks listed in Plaintiff’s

FOIA request and an estimated 10 minutes of managerial time per business submitter

notification, the fee estimate totaled $738. Id. ¶ 23. During the administrative appeal, CBP

concluded that it underestimated the costs by failing to include professional search time but

decided to honor the estimate. Def.’s SOF Reply at 7–8. Plaintiff does not dispute the hourly

rates or time estimates. Def.’s Reply 8 n.2. Consequently, CBP’s fee estimate complies with

FOIA’s limitations, and the court will grant Defendant’s motion for summary judgment.

B. Failure to Exhaust

Plaintiff also seeks to litigate its FOIA request more broadly, arguing that CBP failed to

timely conduct a search or produce records. Compl. ¶¶ 27–30; Pl.’s Opp’n at 13, 28. But

Plaintiff failed to exhaust by refusing to pay the fee estimate after the request was remanded to

CBP’s FOIA division. Pl.’s Statement of Facts, ¶ 23, ECF No. 8-3 (“Pl.’s SOF”). “Exhaustion

Page 13 of 15 does not occur until the required fees are paid or an appeal is taken from the refusal to waive

fees.” Oglesby v. U.S. Dep’t of Army,

(1990) (citing Nat’l Treasury Emp.’s

Union v. Griffin,

(D.C. Cir. 1987)). Once CBP remanded Plaintiff’s request,

after affirming the fee estimate calculation, Plaintiff had an obligation to pay the required fees

before suing to challenge the substance of the FOIA request. See Frank LLP v. CFPB,

(D.D.C. 2017) (“[T]he Bureau is permitted to impose reasonable fees before

processing a remanded FOIA request.”); Kong On Import & Export Co. v. U.S. CPB, No. 04-cv-

02001,

, at *2 (D.D.C. June 20, 2005). It is undisputed that Plaintiff did not

pay the fee to process the FOIA request before filing this suit. Pl.’s SOF ¶ 23; Def.’s SOF Reply

at 8. If a requester fails to pay the requested fees, an agency may suspend its processing of the

FOIA request. Marcusse v. U.S. Dep’t of Just. Off. of Info. Pol’y,

(D.D.C. 2013). Therefore, CBP acted properly when it closed Plaintiff’s request. Id.; see also

(a)(3)(A)(ii) (Agencies must provide records pursuant to requests “made in

accordance with published rules stating the time, place, fees (if any), and procedures to be

followed.”). Plaintiff “remains free to pay [CBP’s] fee . . . in order to get the review process

rolling.” Frank LLP,

(citing Gen. Acct. Off. v. Gen. Acct. Off. Pers.

Appeals Bd.,

(D.C. Cir. 1983)). Until it does so, Plaintiff has not exhausted its

administrative remedies.

Exhaustion is not a jurisdictional bar. Hidalgo v. FBI,

(D.C. Cir.

2003). But in these circumstances, where CBP properly closed the request for failure to pay the

fees and there is no record beyond the fee dispute, CBP deserves “an opportunity to exercise its

discretion and expertise on the matter and to make a factual record to support its decision.”

(quoting Oglesby,

).

Page 14 of 15 IV. CONCLUSION

For the reasons stated above, the court will GRANT Defendant’s Motion for Summary

Judgment, ECF No. 6 and dismiss this action.

Date: March 21, 2025

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 15 of 15