2. Background and Procedural History
The components’ different responses
Aland submitted his request to FWS in February 2022. Within approximately a month, FWS issued a “final response” stating that it had located no responsive records, was closing the request, and would permit an administrative appeal within 90 workdays. It also advised that OS might possess responsive records and forwarded the request there.
OS acknowledged the forwarded request using a tracking identifier that retained the same number but substituted “OS” for “FWS.” It then invoked a ten-workday extension. After further correspondence, OS produced records in October and November 2022 and March and April 2023. Each production letter characterized the response as interim, stated that processing would continue, and promised notice of appeal rights in a later final response.
The unsuccessful administrative appeals
In December 2022, Aland filed an administrative appeal addressing both components. The Department’s appeals officer treated the submissions as separate appeals and rejected them for different reasons:
- FWS: Aland had missed the 90-workday appeal deadline under 43 C.F.R. § 2.58(a).
- OS: Aland had not supplied all required correspondence under 43 C.F.R. § 2.59(b)(1). Although invited to supplement the submission, he did not do so.
The district court proceedings
Aland sued FWS and the Department in July 2023, challenging their searches, their involvement of outside consultants and agencies, and their application of a FOIA exemption. OS completed its production in September 2023 but still did not provide notice of administrative appeal rights.
The district court granted summary judgment to the defendants solely on exhaustion grounds. It treated the components’ responses separately, found the FWS appeal untimely, and concluded that OS’s October 2022 response restored Aland’s obligation to complete the administrative process. It therefore regarded his failure to supplement the OS appeal as fatal without reaching the merits of the searches or withholding decisions.
4. Analysis
A. Precedents Cited and Their Significance
Scherer v. Balkema, 840 F.2d 437, 443 (7th Cir. 1988)
The court cited Scherer v. Balkema for the general requirement that FOIA requesters exhaust administrative remedies before seeking judicial relief. This supplied the starting point: ordinarily, an agency must have the opportunity to address a proper administrative appeal before the requester proceeds to court.
That general requirement did not resolve the case, however, because FOIA itself provides an alternative route through constructive exhaustion when an agency misses the statutory response deadlines.
Citizens for Resp. & Ethics in Washington v. Fed. Election Comm'n (“CREW”), 711 F.3d 180 (D.C. Cir. 2013)
Citizens for Resp. & Ethics in Washington v. Fed. Election Comm'n supplied the decisive framework for identifying a qualifying agency determination. Under the formulation applied by the court, an agency must:
- Gather and review the documents;
- Determine and communicate the scope of the documents it intends to produce and withhold, including the reasons for withholding; and
- Inform the requester of the right to appeal adverse portions of the determination.
The distinction between a present determination and a statement of future intent was crucial. As the opinion explained, active processing and promises to produce nonexempt records do not, by themselves, satisfy the statute. In CREW, the agency’s ongoing work did not prevent constructive exhaustion; OS’s continuing searches and communications likewise did not settle the issue here.
OS’s October letter described reviewed records, the material being released, and an exemption. But it omitted the third requirement: appeal-rights notice. Its express promise to provide that information later reinforced the conclusion that it had not yet delivered the required determination.
Oglesby v. U.S. Dep't of Army, 920 F.2d 57 (D.C. Cir. 1990)
Oglesby v. U.S. Dep't of Army explains that an agency’s late response can restore the requirement of actual administrative exhaustion if the agency responds before the requester files suit. The district court relied on this principle to conclude that OS’s October 2022 letter required Aland to complete an administrative appeal.
The appellate court identified the missing qualification: not every late communication is a legally sufficient response. Read with CREW, Oglesby v. U.S. Dep't of Army requires a qualifying determination, not simply correspondence or a partial production. Because OS never issued such a determination before suit, its late responses did not restore the actual-exhaustion requirement.
Important limitation: The panel expressly stated that it followed the parties’ and district court’s reliance on the D.C. Circuit’s framework without deciding those questions anew. The order therefore should not be characterized as a comprehensive, independent adoption of every aspect of that framework as binding Seventh Circuit law.
Libarov v. U.S. Immigration and Customs Enforcement, 138 F.4th 1010 (7th Cir. 2025)
The court cited Libarov v. U.S. Immigration and Customs Enforcement in two contexts. First, it provided additional support for the discussion of a formal determination sufficient to trigger actual exhaustion. Second, it supported distinguishing a completed production from continuing disputes over search adequacy and exemptions.
That second distinction helped define the remand. Completion of the production did not itself establish that the search had been adequate or that every withholding was lawful.
Webber v. Armslist LLC, 70 F.4th 945, 952 (7th Cir. 2023)
Aland invoked Webber v. Armslist LLC when arguing that the defendants could not seek a favorable modification of the judgment without filing a cross-appeal. The defendants, meanwhile, urged affirmance on the alternative ground that their searches and exemption decisions satisfied FOIA.
The panel did not resolve whether reaching those alternative grounds would modify the judgment or require a cross-appeal. It assumed that reaching the merits might be permissible but declined to do so because the disputes were fact-intensive and received only half a page of government briefing. The opinion therefore establishes no new cross-appeal rule.
B. Legal Reasoning
Separate component responsibilities outweighed similar tracking numbers
Aland argued that there was only one request because FWS and OS used essentially the same tracking number. He relied on FOIA’s individualized-tracking requirement, 5 U.S.C. § 552(a)(7)(A).
The court instead focused on the Department’s regulatory structure. Under 43 C.F.R. § 2.3, records are decentralized and requests must be directed to the appropriate component. Section 2.4(a) addresses forwarding clearly misdirected requests, while § 2.17 and 5 U.S.C. § 552(a)(6)(A) govern response timing following such routing.
These provisions contemplate a response from the receiving component. Consequently, FWS’s final response could neither resolve OS’s processing responsibilities nor supply OS’s missing determination. Equally, OS’s unfinished processing did not extend Aland’s deadline to appeal FWS’s completed determination.
Constructive exhaustion protects access to court when an agency misses its deadline
FOIA ordinarily requires an agency determination within 20 workdays, subject to applicable statutory provisions, including a ten-workday extension for unusual circumstances. Section 552(a)(6)(C)(i) deems administrative remedies exhausted when the agency fails to comply with the applicable time limits.
This provision prevents administrative delay from indefinitely blocking judicial review. Under the framework used in the opinion, a qualifying late determination issued before suit may restore the appeal requirement. But the agency must actually provide that determination.
Appeal-rights notice was substantive, not optional
The decisive defect was not an absence of agency activity. OS searched, communicated, released documents, and explained an exemption. Yet none of its production letters informed Aland that he could appeal an adverse determination. Instead, the interim letters explicitly deferred that notice.
The court therefore treated appeal information as an essential element of the statutory determination. OS could not promise that the appeal stage would arise later while simultaneously arguing that Aland had already failed to complete it.
Aland’s attempted administrative appeal did not require a different result. Once the court found constructive exhaustion, it had no need to decide whether his incomplete appeal and failure to supplement independently satisfied actual exhaustion.
The procedural ruling did not decide the FOIA merits
The court accepted that OS’s completed production mooted the request to compel completion of that production. It nevertheless recognized continuing questions about whether the agency searched adequately and properly treated documents as exempt.
Those issues were not resolved in Aland’s favor. The remand simply removed the exhaustion barrier to their consideration. The district court must address the remaining merits rather than assume either that the agency’s production was legally sufficient or that Aland’s substantive objections were correct.
C. Potential Impact and Limits
- Agency response practices: The reasoning cautions agencies against treating interim production letters as substitutes for determinations containing required appeal information.
- Requester litigation strategy: Requesters should distinguish actual productions from legally sufficient determinations and assess exhaustion separately for components with distinct processing obligations.
- Internal transfers: Forwarding a request may affect response timing, but it does not eliminate the recipient component’s duty to respond.
- Continuing merits disputes: A completed production does not automatically resolve challenges to the adequacy of the search or the legality of exemptions.
- Limited precedential reach: The order is nonprecedential, its component-specific analysis rests on Interior’s regulations, and its use of the D.C. Circuit framework was expressly qualified.
The opinion does not suggest that every interim response is unlawful, that every internal referral necessarily creates separate obligations under every agency’s rules, or that missing a response deadline establishes entitlement to all requested records.