Q. I filed a lawsuit against a federal agency because its response was several months late. The agency’s response letter miraculously showed up a few days later by snail mail. The envelope was postmarked on the same day I sued the agency and its letter was dated one week earlier. Will the court dismiss my case for not exhausting my administrative remedies?
A. Maybe. After an agency misses its response deadline, it can cure that deficiency by actually responding before a requester files a lawsuit. See Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. 1990). In this case, the agency reached a determination before you filed suit, but it did not transmit its determination beforehand. Had the agency mailed its response letter one or more days earlier, I’d say your prospects would be much dimmer. The fact that you received the agency’s letter only after you filed suit is not dispositive in your favor, though a number of district courts have declined to dismiss cases on exhaustion grounds where the plaintiffs raised genuine disputes about whether or when they received agency responses. See, e.g., Houser v. Church, 271 F. Supp.3d, 197 (D.D.C. 2017); Pinson v. DOJ, 69 F.Supp.3d 125 (D.D.C. 2014); Thomas v. OCC, 684 F.Supp.2d 29 (D.D.C. 2010).