None of the FDA letters advised Thomas of his right to appeal an adverse decision to the agency head. Moreover, the FDA did not respond to Thomas’ appeal of his constructive denial as required by 5 U.S.C. § 552(a)(6)(A)(ii). On April 15, 2008, when the Clerk of Court received Thomas’ complaint, Thomas was entitled to the benefit of constructive exhaustion under 5 U.S.C. § 552(a)(6)(C). The FDA’s letter demanding pre-payment of the search fees came too late; Thomas had already submitted his complaint for filing. And, in any case, the FDA’s letter dated April 16, 2006 still did not satisfy the requirements of 5 U.S.C. § 552(a)(6)(A)(i) and (ii), and would have failed to revive the exhaustion requirement even if Thomas had received it before filing suit. Cf. Oglesby, 920 F.2d at 64 (<HOLDING>). On these facts, Thomas is entitled to
holding that exhaustion is required even where the relief sought is not available in the administrative process holding that exhaustion of issues is waived if not raised by the government holding that issue exhaustion is mandatory even if not a statutory jurisdictional requirement recognizing that issue exhaustion requirement and requirement exhaustion of remedies are different holding that if an agency responds even if late before the plaintiff files suit the administrative exhaustion requirement is revived