Unpublished Disposition, 927 F.2d 608 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 608 (9th Cir. 1989)

E.E. CHANDLER, Plaintiff-Appellant,v.INTERNAL REVENUE SERVICE, Defendant-Appellee.

No. 90-35501.

United States Court of Appeals, Ninth Circuit.

Submitted Mar. 1, 1991.* Decided March 5, 1991.

Appeal from the United States District Court for the Western District of Washington, No. CV-89-649-JET; Jack E. Tanner, District Judge, Presiding.

W.D. Wash.

AFFIRMED.

Before FLETCHER, PREGERSON and TROTT, Circuit Judges.


MEMORANDUM** 

E.E. Chandler appeals pro se the district court's order dismissing without prejudice his Freedom of Information Act (FOIA) claim against the Internal Revenue Service (IRS) for failure to exhaust his administrative remedies. Chandler contends that he was not obligated to pursue his administrative remedies because the IRS failed to timely respond to his disclosure request. We have jurisdiction pursuant 28 U.S.C. § 1291 and affirm.

Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing a FOIA claim in district court. See United States v. Steele (In re Steele), 799 F.2d 461, 465-66 (9th Cir. 1986). This exhaustion requirement, however, is deemed waived if the administrative agency fails to respond to the FOIA request within the statutory time limit. See 5 U.S.C. § 552(a) (6) (C); Treas.Reg. Sec. 601.702(c) (10). The time limit for responding to a FOIA request to is ten working days. See 5 U.S.C. § 552(a) (6) (A) (i); Treas.Reg. Sec. 601.702(c) (7) (i). Treasury Regulation section 601.702(c) (5) provides that

[r]equests for records ... shall be promptly stamped with the date of delivery to ... the office of Internal Revenue Service officials responsible for the control of the records requested (or their delegates). The latest of such stamped dates will be deemed for purposes of this section to be the date of receipt of the request....

Chandler's FOIA request was delivered to the IRS by certified mail on December 5, 1989. The letter was stamped as received by the IRS on December 6, 1989. On December 11, 1989, the letter was stamped received by the IRS's Disclosure Office, the office responsible for the control of the requested records. Ten working days later, on December 26, 1989, the IRS responded to Chandler's request, providing some, but not all of the information requested by Chandler. Because the IRS's response was sent to Chandler within the statutory time limit and because Chandler failed to pursue his administrative remedies prior to filing this action, the district court did not err in dismissing Chandler's action for failure to exhaust his administrative remedies.1  See In re Steele, 799 F.2d at 466.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 1

Chandler also contends that the IRS violated Treasury Regulation section 601.702(c) (5)'s requirement that " [a]s soon as the date of receipt has been established as provided above, the requester shall be informed and advised when a response may be expected...." Even if true, however, the IRS's failure to issue such notification does not constitute a waiver of Chandler's obligation to exhaust his administrative remedies. Cf. Treas.Reg. Sec. 601.702(c) (10) (only IRS's failure to comply with the time limits will be deemed a waiver of requirement to exhaust)