FREDERICK MARTONE, District Judge
Before the court are Defendants' motion to dismiss (doc. 21), Plaintiff's response and motion for summary judgment, Defendants' reply, and Plaintiff's final brief.
I. Factual and Procedural Summary
Using the Freedom of Information Act ("FOIA"), Allen twice requested information from Defendants ("IRS"). He made his first request June 10, 2003. He then filed this action on September 3, 2003. He made his second request on January 2, 2004. We granted leave for him to amend his complaint, adding a claim based on his second request. The IRS moves to dismiss for two reasons. First, it conducted a reasonable search for responsive records. Second, Allen failed to exhaust his administrative remedies.
Before turning to the merits, we consider two of Plaintiff's arguments. First, Allen argues that the IRS has destroyed records in violation of the Federal Records Destruction Act ("FRDA"). But the FRDA does not provide a private cause of action. Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136 (1980). Therefore, his argument is without merit. Allen also argues that we should not consider the IRS's motion because it was filed five days after our deadline for dispositive motions. Because he has not shown prejudice, and the motion was only five days late, we will consider it.
II. Reasonable Search for Responsive Records
The IRS argues that it conducted a reasonable search for responsive documents. We consider this argument as one for summary judgment. See, e.g., Zemansky v. EPA, 767 F.2d 569 (9th Cir. 1986). If the IRS conducted a "search reasonably calculated to uncover all relevant documents," then summary judgment is appropriate. Id. at 571.
Allen requested documents related to tax years 1983 through 2002. The IRS has done an extensive search for the requested documents. It has provided those records which exist and are in its possession. It has notified Allen of records which do not exist and the reason they do not exist. It has also informed him how to request documents which are in another agency or office's possession. There is no evidence that the IRS possesses undisclosed documents which Allen requested. In contrast, the evidence shows that the IRS conducted a thorough and complete search.
III. Exhaustion
Allen must exhaust his administrative remedies before filing a FOIA action. 5 U.S.C. § 552(a)(6)(A); In re Steele, 799 F.2d 461, 465 (9th Cir. 1986). If Allen did not exhaust his administrative remedies, we lack subject matter jurisdiction. Hymen v. MSPB, 799 F.2d 1421, 1423 (9th Cir. 1986).
Allen's first two claims are based on his June 10, 2003 request. The IRS responded on August 29, 2003. Before he received the response on September 5, 2003, Allen filed this action on September 3, 2003.
While the Ninth Circuit has not specifically addressed the issue, other circuits have held that a requester has not exhausted his administrative remedies when an agency responds late to a request, but responds before the requester files suit. See, e.g., Oglesby v. U.S. Dep't of the Army, 920 F.2d 57, 63-65 (D.D.C. 1990); JoAnn F. Wasil, Annotation, Exhaustion of Administrative Remedies as Prerequisite to Judicial Action to Compel Disclosure Under Freedom of Information Act (FOIA) (5 U.S.C.A. § 552), 112 A.L.R. Fed. 561 (1993). This allows an agency to respond before the invocation of federal jurisdiction. Because the IRS responded before Allen filed suit, he failed to exhaust his administrative remedies.
Allen's third claim is based on a request made on January 2, 2004. Because this action was filed on September 3, 2003, he could not have exhausted administrative remedies.
IV. Conclusion
We GRANT Defendant's motion to dismiss on two grounds. First, the IRS has conducted a reasonable search for responsive records. Second, Allen did not exhaust his administrative remedies before filing this action. For the same reasons, we DENY Plaintiff's motion for summary judgment.
Accordingly,
IT IS ORDERED GRANTING Defendants' motion to dismiss (doc. 21).