[00:00:00] Speaker 04:
We'll go on to the next case on the calendar.

[00:00:07] Speaker 04:
Corbett versus TSA, 23-55713.

[00:00:12] Speaker 04:
Just for planning purposes, after this argument, we'll take a brief recess before the last argument.

[00:00:59] Speaker 01:
Good morning, Your Honors.

[00:01:00] Speaker 01:
May it please the Court, as the owner of a small law firm, I personally filed a lot of public records requests with various federal and state agencies, and I can tell you from that experience that the majority of agencies do not give up their records willingly, as these public laws require.

[00:01:19] Speaker 01:
They either partially deny, fully deny, ignore, or pull some kind of other setter-fuge instead of a proper response.

[00:01:29] Speaker 01:
It's only the availability of court enforcement of these rights under these public records laws that allows these laws to stay alive.

[00:01:38] Speaker 04:
FOIA is a very important statutory scheme.

[00:01:40] Speaker 04:
We're very mindful of that.

[00:01:41] Speaker 04:
We've written on that, published on that, of course.

[00:01:45] Speaker 04:
But I'm a little distracted, I think, in this case by the fact that you are a lawyer and you

[00:01:52] Speaker 04:
your brief makes that clear, that you do this a lot.

[00:01:56] Speaker 04:
You file a lot of FOIA requests.

[00:01:58] Speaker 04:
So in this particular case, when the agency responded by saying, we've got this privacy act concerned, we really are required to know who you are and why you want this information, why didn't you respond?

[00:02:07] Speaker 01:
Yeah.

[00:02:07] Speaker 01:
The reason why is that the agency is not allowed, in response to a public records request, to demand some kind of certification.

[00:02:16] Speaker 01:
When that response came through, that they wanted me to sign forms authorizing this and

[00:02:23] Speaker 01:
I very clearly told them, no, I'm not looking for private records that require authorization.

[00:02:29] Speaker 01:
I'm seeking public records only.

[00:02:32] Speaker 01:
And they took that response from me and did nothing with it until I sued them.

[00:02:39] Speaker 01:
And I think it's important that we don't allow agencies to create their own additional requirements outside of FOIA.

[00:02:46] Speaker 01:
Doing that also allows them to continue to frustrate and draw these out.

[00:02:50] Speaker 01:
The court can probably read behind the lines here.

[00:02:52] Speaker 01:
The reason for these requests was that I had potential clients coming to me saying that they were injured and we were seeking records to see if the agency actually did injure them.

[00:03:02] Speaker 01:
If those records don't come within a specific period of time, they're useless.

[00:03:06] Speaker 01:
The statute of limitations is exhausted.

[00:03:09] Speaker 01:
And that's the whole reason why this needs to happen fast and why the agency has

[00:03:13] Speaker 01:
every incentive to pull SutterFuge to delay until it's no longer valuable.

[00:03:18] Speaker 04:
Right.

[00:03:18] Speaker 04:
And opposing counsel is going to suggest that if you'd really wanted the records, and, of course, everyone's best interest is that FOIA works the way it should, you could have signed that form to obtain the records.

[00:03:29] Speaker 04:
And I guess your position is, you know, I don't have to.

[00:03:32] Speaker 04:
That's your position.

[00:03:33] Speaker 01:
Correct.

[00:03:34] Speaker 01:
You know, there is some long-term game here where, as a lawyer, I need to be able to access public records without this kind of SutterFuge in the long term.

[00:03:43] Speaker 01:
So that is what I'm seeking here is vindication of the process itself.

[00:03:50] Speaker 04:
So there's quite a number of district court opinions, I think.

[00:03:54] Speaker 04:
And this is kind of a muddy issue.

[00:03:56] Speaker 04:
We don't have controlling authority on point.

[00:03:58] Speaker 04:
We are loathe to suggest that administrative processes should not be exhausted, as you know.

[00:04:03] Speaker 04:
And so can you go to what are a rule you're asking us to announce and how you think it would work?

[00:04:10] Speaker 01:
Yeah, so in the court below, there wasn't really a dispute that there was constructive exhaustion, that the agency didn't actually fulfill its duty, which is within 20 working days, to grant or deny the claim.

[00:04:23] Speaker 01:
So the question is, what happens when an agency does their duty post-law suit?

[00:04:31] Speaker 01:
And to that extent, yes, there is a split.

[00:04:34] Speaker 00:
And one little blank here, but this is not, I think, going to interfere with your argument.

[00:04:38] Speaker 00:
We have case law that says if there has been statutory exhaustion because the agency has not timely responded but no lawsuit filed, if they respond outside the statutory period, that is exhaustion.

[00:04:52] Speaker 00:
Correct.

[00:04:53] Speaker 00:
So the question here is, well, what happens if there has been a lawsuit and they respond after the lawsuit?

[00:04:59] Speaker 01:
Correct.

[00:04:59] Speaker 01:
So the text of FOIA compels that case law that if they respond before suit, then they can cure constructive exhaustion.

[00:05:08] Speaker 04:
But responding after suit- Can I just- that makes perfect sense, and we have public authority on that, right?

[00:05:14] Speaker 04:
Yes, absolutely.

[00:05:15] Speaker 04:
Because then, if the agency is late, I'll say, after the 20 days, the agency still hasn't an incentive to respond.

[00:05:22] Speaker 04:
And that's what we- right?

[00:05:24] Speaker 04:
That's what the system is set up to.

[00:05:25] Speaker 04:
to require.

[00:05:26] Speaker 04:
And so we've said if that happens, if they come in, they come in after 20 days with their response, then the litigant still has to respond.

[00:05:34] Speaker 04:
Exhaust, forgive me.

[00:05:35] Speaker 01:
Yes, Your Honor.

[00:05:36] Speaker 01:
That makes a lot of sense.

[00:05:37] Speaker 01:
And why would you sue if you already have a response, even if it was a little bit later?

[00:05:40] Speaker 04:
Well, perhaps you don't think you have a complete response.

[00:05:42] Speaker 04:
But at any rate, if you could now pivot to the fact pattern that we have here, which is just the inverse.

[00:05:48] Speaker 04:
The agency didn't respond, and you sued, and then they responded.

[00:05:52] Speaker 01:
Correct.

[00:05:53] Speaker 04:
What rule do you think we should have announced for that circumstance?

[00:05:57] Speaker 01:
So in that circumstance, there's really two options.

[00:06:00] Speaker 01:
There's what the Sixth Circuit and the Southern District of Ohio did, which is basically treat this as two separate cases.

[00:06:07] Speaker 01:
The first case for responding on time, if they respond.

[00:06:11] Speaker 01:
then you get the second case to challenge the adequacy of their response.

[00:06:15] Speaker 01:
Splitting this into two separate cases does just that.

[00:06:18] Speaker 01:
It makes it twice as much burden on the judicial system and twice as much burden on the litigants, both as far as money and time.

[00:06:26] Speaker 01:
By the time you get through two cases in the federal courts on a matter that already was delayed because the agency didn't respond on time, we're speaking of years now.

[00:06:36] Speaker 04:
So that's not an attractive option.

[00:06:38] Speaker 04:
At least for my vote, that's not an attractive option because we are very concerned about the judicial economy.

[00:06:44] Speaker 04:
So could you speak to the other option?

[00:06:46] Speaker 01:
Sure.

[00:06:47] Speaker 01:
So the Fourth Circuit in DC district that the court asked us to address went the other way.

[00:06:55] Speaker 01:
They basically said, look, if the agency hasn't responded and you sued before they respond, we're going to hear the whole case.

[00:07:02] Speaker 01:
And that makes a lot of sense, especially when you consider what happened here, which is that the response was no.

[00:07:09] Speaker 01:
All the agency did was.

[00:07:10] Speaker 04:
Can I back up?

[00:07:10] Speaker 04:
I know I'm interrupting you.

[00:07:11] Speaker 04:
I'm cognizant of that.

[00:07:12] Speaker 04:
I want to apologize.

[00:07:13] Speaker 04:
But here's the deal.

[00:07:14] Speaker 04:
If it's a black and white and the agency's done nothing, that's one circumstance.

[00:07:19] Speaker 04:
And I think that's what you're suggesting.

[00:07:20] Speaker 04:
And the case law you're talking about is sort of closer to that.

[00:07:23] Speaker 04:
But what if the agency has responded and there's an ongoing exchange, but the agency has neither produced the documents nor really finally said they're not going to?

[00:07:34] Speaker 04:
Should this rule that you're announcing or wanting us to announce, rather, should it be a rebuttable presumption or something where the trial court would have some

[00:07:43] Speaker 04:
ability to take into account the circumstances?

[00:07:47] Speaker 01:
Possibly, Your Honor, but I think the better way of looking at it is there's either constructive exhaustion or there's not.

[00:07:53] Speaker 01:
Did they meet this 20 working day rule, the burden that is not just an acknowledgement, but an actual, yes, we're going to produce the records, or no, we're not, or we need more time because of this extraordinary circumstance?

[00:08:05] Speaker 04:
I'm not sure I agree with that, and that's exactly what I'm trying to push back on.

[00:08:08] Speaker 04:
It might be, and we are very concerned about increasing our

[00:08:12] Speaker 04:
very diligent colleagues in the district court increasing their workload.

[00:08:17] Speaker 04:
I'm wondering if there shouldn't be a baked in off ramp in your rule so that if the judge is persuaded that progress is being made, perhaps the agency is searching and trying and there's a good ... that this should be resolved administratively before the parties are allowed to run the court.

[00:08:34] Speaker 01:
That very well may be prudent if there is some kind of circumstance where the agency is truly trying.

[00:08:40] Speaker 01:
Here we have a situation where immediately after they said they wanted these additional authorization forms that they're not allowed to ask for, they were told you're not getting them and they sat on it in one of the claims for over a year.

[00:08:53] Speaker 01:
There was clearly nothing going on here.

[00:08:57] Speaker 01:
Academically, I think that's a really interesting question.

[00:09:00] Speaker 01:
And maybe to alleviate some stress on the district courts, and as a practitioner in the district courts who sees them overburdened and would like his motions decided in months rather than years, I'm with you on that one.

[00:09:11] Speaker 01:
I would love to see the burden reduced on the district court.

[00:09:13] Speaker 04:
Is there a reason you think that wouldn't be workable?

[00:09:17] Speaker 01:
Well, how do you determine if the agency is actually working on a claim or not?

[00:09:22] Speaker 04:
I think if I were a trial court judge, I would ask the agency to show me that, and it would be on paper.

[00:09:26] Speaker 04:
I would be able to see if there's a back and forth, if progress is being made, if it looks like there's good faith.

[00:09:30] Speaker 04:
I would certainly take into account the length of time that has passed without a response.

[00:09:35] Speaker 04:
It seems pretty simple to me.

[00:09:36] Speaker 01:
Yeah, I think that would be a fair way to do it.

[00:09:39] Speaker 01:
I'm not sure that FOIA calls for it in the text of the statute.

[00:09:43] Speaker 01:
Perhaps that's an implied remedy that the courts could allow.

[00:09:48] Speaker 01:
But I just don't think it applies here in this case, or even arguably.

[00:09:54] Speaker 04:
OK.

[00:09:54] Speaker 04:
Do you have additional questions?

[00:09:57] Speaker 04:
No.

[00:09:57] Speaker 04:
Looks like you're off the hook for now.

[00:09:59] Speaker 01:
OK.

[00:09:59] Speaker 01:
Let me save her a moment.

[00:10:00] Speaker 04:
We'll call you back in a minute.

[00:10:02] Speaker 04:
Let's hear from the government, please.

[00:10:11] Speaker 03:
Good morning, Your Honors, and may it please the Court Assistant United States Attorney, Jennifer Jacobs, for the Transportation Security Administration.

[00:10:20] Speaker 03:
Your Honors, the District Court correctly dismissed Mr. Corbett's complaint without prejudice based on administrative exhaustion, so he could pursue an administrative appeal.

[00:10:34] Speaker 03:
Now, the district court also correctly noted that Mr. Corbett never argued that an administrative appeal would be futile in this case.

[00:10:46] Speaker 00:
He just didn't want to do it.

[00:10:47] Speaker 00:
He said, you guys have waited too long.

[00:10:49] Speaker 00:
You're done.

[00:10:50] Speaker 00:
I get to sue now.

[00:10:53] Speaker 03:
Right, I think what Mr. Corbett is advocating is this bright line rule that if a requester files suit before an agency responds, they're not required to administratively appeal.

[00:11:12] Speaker 03:
I mean, that's what he wants, is a bright line.

[00:11:15] Speaker 00:
Well, we've got a statute that says if you don't reply timely, that has exhausted.

[00:11:23] Speaker 00:
And you've got a loophole that the courts have given you, including this court.

[00:11:28] Speaker 00:
Okay, it's passed the time, but you nonetheless respond.

[00:11:32] Speaker 00:
We'll say, okay, we'll give you an excuse from the fact that you failed.

[00:11:37] Speaker 00:
But you want more.

[00:11:39] Speaker 00:
You want to say, we're going to make them bring suit, and once they bring suit, then we'll respond, and then we'll get to say that we exhausted.

[00:11:49] Speaker 00:
Here's my problem with that as a practical matter.

[00:11:51] Speaker 00:
That lets the agency sit on this for as long as it wants.

[00:11:56] Speaker 00:
And then finally, when a lawsuit is brought, maybe a year, maybe longer, after statutory exhaustion has taken place, suit is filed, and then the agency says, oh, well, you know what, I'm going to make you go through the administrative procedure.

[00:12:14] Speaker 00:
That doesn't strike me as a very sensible way to go about it, and I see nothing in the statute that allows you to do it.

[00:12:21] Speaker 00:
So what's your response?

[00:12:22] Speaker 03:
OK, Your Honor, thank you.

[00:12:26] Speaker 03:
My response is that this court already recognized in Aguirre that it's not following this.

[00:12:33] Speaker 00:
It's not going to.

[00:12:34] Speaker 00:
That's what I said.

[00:12:35] Speaker 00:
We already cut your break.

[00:12:37] Speaker 00:
You cut us a break, right.

[00:12:38] Speaker 00:
And you said.

[00:12:39] Speaker 00:
You'd like some more.

[00:12:40] Speaker 04:
But that break, I know we're parlaying on now.

[00:12:43] Speaker 04:
just feel better signposting than I'm aware of that.

[00:12:46] Speaker 04:
But that break is one that's entirely consistent with FOIA, right?

[00:12:50] Speaker 04:
Because, and we can have our cake and eat it too there, because we're still baking in an incentive for the agency to respond.

[00:12:56] Speaker 04:
In fact, to respond quickly before you get sued.

[00:12:58] Speaker 04:
If you do, he still has to exhaust.

[00:13:02] Speaker 04:
If you partially respond, he would still have to exhaust.

[00:13:06] Speaker 04:
This rule would cut the other way, and I think given the backdrop of Aguirre, I'm concerned that we'd then be in a position where the agency would actually have a disincentive to respond.

[00:13:15] Speaker 03:
I disagree that they'd have a disincentive to respond.

[00:13:20] Speaker 03:
Okay.

[00:13:20] Speaker 03:
I think FOIA is, it's always been a cooperative process between the agency and the requester.

[00:13:27] Speaker 03:
That's what you say.

[00:13:28] Speaker 04:
I'm not sure that the other team feels that way.

[00:13:31] Speaker 03:
What's your other argument?

[00:13:33] Speaker 03:
I think that's the idea.

[00:13:38] Speaker 03:
For example, when an agency does request clarification, a requester can't just sit on their hands and not provide clarification and then run to court and say that they've exhausted.

[00:13:57] Speaker 03:
I heard the laughter and I get the point, but there is a cooperative process here.

[00:14:05] Speaker 04:
Well, there isn't always, or it doesn't seem to be, and what do we know?

[00:14:07] Speaker 04:
We only see the ones that go off the rails, frankly, and I'm really mindful of that.

[00:14:12] Speaker 04:
But can we get your idea about whether this should be a bright line rule?

[00:14:15] Speaker 04:
You seemed to indicate in your first comment, you weren't so wild about that.

[00:14:19] Speaker 04:
You certainly aren't a fan of the bright line rule going the way of

[00:14:22] Speaker 04:
opposing counsel wants it to.

[00:14:23] Speaker 04:
Should it be a presumption where the district court has a chance to take a quick look and see if progress is being made, and as long as it is, require exhaustion?

[00:14:32] Speaker 04:
Because after all, the goal is to get the documents produced.

[00:14:36] Speaker 03:
Yes, I do think that giving the district court some discretion to decide whether or not there is any futility in pursuing administrative proceedings is the right way to go.

[00:14:54] Speaker 03:
Has any court done that?

[00:14:59] Speaker 04:
I don't think so.

[00:15:00] Speaker 03:
I don't think so.

[00:15:02] Speaker 03:
I think it's a little bit more akin to the Miller case that you asked us to address, you know, where they said timeliness was exhausted, but the substance of the response.

[00:15:15] Speaker 02:
I mean, can I ask about if we were

[00:15:19] Speaker 02:
In theory, there's two bright line rules, and then there's this presumption rule sort of in the middle.

[00:15:23] Speaker 02:
One would be the bright line rule that if they beat you to the courthouse before you respond, even if you blew your deadline, then exhaustion is excused.

[00:15:35] Speaker 02:
The other would be a bright line rule that you want, I think, which is if they beat you to the courthouse, but then we respond.

[00:15:42] Speaker 02:
then they have to exhaust, which has, I think, this disincentive problem.

[00:15:50] Speaker 02:
And then the third would be where their bright line rule, but not a bright line that you look at, that you look at like the agency gets a chance to come in and explain, oh, we weren't

[00:16:03] Speaker 02:
We don't have a policy of waiting until people sue.

[00:16:07] Speaker 02:
We're all on holiday or something.

[00:16:09] Speaker 02:
I don't know.

[00:16:10] Speaker 02:
But that creates—but one problem with that, the third one, is it actually creates—and everybody's overworked, right?

[00:16:15] Speaker 02:
That creates extra work for the district courts, I feel like, because the district court, if we have one or the other bright line rule, they just get to decide whether or not this case goes forward.

[00:16:26] Speaker 02:
But the third one, they have to hold a hearing and take briefing, and it adds a whole other step.

[00:16:32] Speaker 02:
Is that a good or bad thing?

[00:16:37] Speaker 03:
Well, I think it would be a good thing.

[00:16:40] Speaker 04:
I ask you to speak to the baked-in assumption.

[00:16:45] Speaker 04:
Would there need to be a hearing?

[00:16:47] Speaker 04:
I don't know that.

[00:16:48] Speaker 04:
I don't know.

[00:16:48] Speaker 04:
So if the goal would be to see whether or not that the administrative process is working, would there need to be a hearing?

[00:17:01] Speaker 03:
I don't know how a decision would be made without a hearing, but there could just be briefing.

[00:17:07] Speaker 02:
Maybe it would need, yeah, maybe briefing, but the judge would have to enter some sort of ruling on that issue, I feel like.

[00:17:12] Speaker 02:
It would be a threshold issue the judge would have to decide.

[00:17:15] Speaker 02:
To extend a hearing as an oral argument and all that, I suppose it would be like any other motion the judge could decide whether that would be helpful, but it would be another step.

[00:17:25] Speaker 03:
Right, right.

[00:17:28] Speaker 02:
I guess I'm trying to figure out whether or not imposing that cost is .

[00:17:33] Speaker ?:
.

[00:17:33] Speaker 02:
.

[00:17:33] Speaker 02:
I'm trying to think what my district court colleagues would think of that, whether they would just prefer, give me one bright line one way or the other, but I don't want this extra .

[00:17:42] Speaker 04:
.

[00:17:42] Speaker 04:
.

[00:17:42] Speaker 04:
The other bright line we'd be talking about is the district court throwing it all into the district court as opposed to requiring that it be worked out in the administrative process.

[00:17:50] Speaker 04:
This would be a midpoint

[00:17:52] Speaker 04:
that would allow the district court to exercise discussion to send it back.

[00:17:57] Speaker 04:
It would.

[00:17:58] Speaker 04:
Okay.

[00:18:01] Speaker 04:
Are there additional questions?

[00:18:07] Speaker 04:
Anything else you want to add?

[00:18:09] Speaker 03:
Well, I will say with regard to the concern about conserving judicial resources, currently, a requester who doesn't get a response in 21 working days can file his lawsuit, and then the district court gets

[00:18:27] Speaker 03:
They must be the first person to make a pass on all of the requester's claims, timeliness, the adequacy of the search, and the lawfulness of the response.

[00:18:41] Speaker 03:
And they do that without any kind of factual record that is developed when there's a fulsome administrative process.

[00:18:50] Speaker 03:
And in some of these FOIA cases,

[00:18:53] Speaker 03:
having that factual record developed by the agency can be super helpful to the district court.

[00:19:03] Speaker 03:
So I wouldn't say always the two lawsuit concern uses as much judicial resources as the current state of affairs where a requester can go into court on that 21st working day and have the district court

[00:19:23] Speaker 03:
make all the decisions without the benefit of an administrative process.

[00:19:30] Speaker 04:
Thank you for your argument.

[00:19:31] Speaker 04:
All right.

[00:19:31] Speaker 04:
Thank you.

[00:19:32] Speaker 04:
Counsel, you saved a little bit of time, I think.

[00:19:35] Speaker 04:
Oh, you saved quite a bit of time.

[00:19:42] Speaker 01:
Thank you, Your Honor.

[00:19:45] Speaker 01:
The Court seems to be contemplating

[00:19:47] Speaker 01:
One bright line, another bright line, or some kind of middle path.

[00:19:50] Speaker 04:
I appreciate that you've been listening.

[00:19:51] Speaker 04:
I'm not sure either of my colleagues are so warming up to that idea, but I'm just wondering what the options are because there are reasons for the exhaustion requirement, and we're not

[00:20:01] Speaker 04:
At least one of us isn't wild about throwing these into district court if we don't have to and increasing their workload.

[00:20:06] Speaker 01:
Yeah, and I would much rather not have these cases in the district court either.

[00:20:11] Speaker 02:
I'm curious about this, what we might call the middle ground approach, which is probably a better label for it, but you know what I'm talking about.

[00:20:19] Speaker 02:
Yes.

[00:20:19] Speaker 02:
You do this all the time.

[00:20:22] Speaker 02:
If this was brought to a district court, is your feeling like the district court would be like, wow, this is a good chance to get this off my docket, and so the district court would often be ruling against you, or is this something that would be helpful to you?

[00:20:36] Speaker 02:
What is your thought about that?

[00:20:37] Speaker 01:
I definitely had a few times where I thought the district court just wanted my case off the docket as a plaintiff's attorney.

[00:20:45] Speaker 01:
You know, any kind of rule that's not a bright line does invite proceedings and invites hearings invites arguments.

[00:20:52] Speaker 01:
If there was a way to make that middle grounds, more of a bright line rule there was an easy way to figure out if there was some kind of process going on or not.

[00:21:01] Speaker 01:
That would be amazing.

[00:21:03] Speaker 01:
I think that Congress probably needs to speak on this more than the courts.

[00:21:07] Speaker 00:
What options are available under the existing FOIA for the agency to say, we're working very hard on it, we blew the statutory deadline because it is so short, we need more time, don't sue us?

[00:21:20] Speaker 01:
Yeah, so basically that 20 working day window allows them to draft a response that says that there is some kind of extraordinary circumstance that requires an additional time, whether that be, you know, we just lost our FOIA officer or this is so voluminous that we need time to analyze or what have you.

[00:21:42] Speaker 01:
So that is available to them.

[00:21:44] Speaker 01:
And I believe if they had responded in that regards even after the 20 days, but before suit,

[00:21:50] Speaker 01:
that still would have precluded constructive exhaustion.

[00:21:54] Speaker 00:
Yeah.

[00:21:54] Speaker 00:
And how stringent is that requirement of extraordinary circumstances?

[00:21:59] Speaker 00:
From my understanding.

[00:22:00] Speaker 00:
I'm not trying to get sort of a real world sense of this.

[00:22:03] Speaker 01:
Yeah.

[00:22:04] Speaker 01:
So a lot of agencies, in my experience, claim their extraordinary circumstance is they have a backlog.

[00:22:10] Speaker 01:
And the courts, I don't think, have taken very kindly to that.

[00:22:13] Speaker 01:
So the extraordinary circumstance required by the courts is something greater than we've got a lot to do.

[00:22:19] Speaker 01:
But it does not require something so esoteric.

[00:22:25] Speaker 02:
Just such a question.

[00:22:26] Speaker 02:
How often do you get, anecdotally, how often do you get the response, we need more time, extraordinary circumstance?

[00:22:33] Speaker 01:
I'd say the more common response is simply no, we're denying it under a list of exemptions, and then you have to figure out what those exemptions possibly mean and how they could apply.

[00:22:45] Speaker 01:
There are some agencies that seem to have a blanket policy of just denying everything at the first level, and then you get the real opportunity to ask for your records at the administrative appeal level.

[00:22:56] Speaker 01:
which also isn't great, but at least it's not burdening the court.

[00:23:00] Speaker 01:
And here we didn't even have any of that process, unfortunately.

[00:23:06] Speaker 01:
If I can speak to just one more point.

[00:23:09] Speaker 04:
You have two minutes left.

[00:23:10] Speaker 04:
Go right ahead.

[00:23:10] Speaker 01:
Sure.

[00:23:11] Speaker 01:
Even if we take any of those three approaches, the bright line rule on one side or the other, the middle ground, the problem with

[00:23:19] Speaker 01:
A problem with the district court ruling is that it essentially precludes attorney's fees.

[00:23:25] Speaker 01:
So even the Sixth Circuit and the Southern District of Ohio that had the bright line in the way that favors the government would have held that my claim that they didn't respond on time was moot.

[00:23:38] Speaker 01:
This court here held that the claim that they didn't respond on time was constructively exhausted, which just misses the mark under any case law, under any possible rationale.

[00:23:48] Speaker 01:
Even if the court wished to adopt the Sixth Circuit Bright Line, I would just ask the court reverse the reasoning for the dismissal such that attorney's fees can be had, because this was a situation where we wouldn't have gotten records unless we sued.

[00:24:01] Speaker 01:
We sued, we got the records.

[00:24:03] Speaker 01:
Well, we got a response, even if not records.

[00:24:06] Speaker 01:
So it should be considered a prevailing party.

[00:24:08] Speaker 01:
Thank you, Your Honor.

[00:24:09] Speaker 04:
Thank you both.

[00:24:10] Speaker 04:
We'll take that case under advisement.

[00:24:11] Speaker 04:
Counsel, we're going to take a five-minute break, and then we'll be back.