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Dennly R. Becker v. Executive Office For United States Attorneys

August 8, 2011



This action, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). Presently pending for decision is the United States Department of Justice's ("DOJ") motion for dismissal of defendant the Executive Office for United States Attorneys ("EOUSA") pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), and the DOJ's motion for summary judgment pursuant to Rule 56.*fn1 Dckt. No. 10. The motions are noticed for hearing on August 10, 2011.

Because the court has determined that oral argument will not materially assist in resolving the motions, the August 10 hearing is vacated pursuant to Local Rule 230(g). Additionally, for the reasons stated below, the undersigned recommends that the motions be granted.

I. Background

On March 1, 2011, EOUSA received a FOIA request from plaintiff seeking information discovered during an investigation regarding Wachovia Bank. Def.'s Statement of Undisputed Facts ("SUF"), Dckt. No. 10-1, ¶ 1*fn2 ; Pl.'s Resp. to SUF ("Resp. to SUF"), Dckt. No. 11, ¶ 1. On March 11, 2011, EOUSA responded to plaintiff's letter, informing him that his letter was received, that it was assigned a FOIA request number, and that it would be handled in the order it was received. SUF ¶ 2; Resp. to SUF ¶ 2. On March 18, 2011, EOUSA requested that the United States Attorney's Office for the Southern District of Florida conduct a search for records responsive to plaintiff's request, since any responsive documents would have been located in that office. SUF ¶¶ 3, 9.

On April 28, 2011, EOUSA received another letter from plaintiff, conveying his concern that as of that date he had not received any other information regarding his FOIA request. SUF ¶ 4; Resp. to SUF ¶ 4. Then, on May 11, 2011, EOUSA received another letter from plaintiff stating his intent to file a complaint regarding the lack of response from EOUSA. SUF ¶ 5; Resp. to SUF ¶ 5. Plaintiff filed this action on June 2, 2011. Dckt. No. 1. Then, on June 7, 2011, EOUSA responded to plaintiff, stating that after a search conducted in the Southern District of Florida, no responsive records were found. SUF ¶ 6; Resp. to SUF ¶ 6; see also SUF ¶¶ 8-19.

II. Motion to Dismiss

The DOJ moves to dismiss EOUSA for lack of jurisdiction under FOIA and to substitute the DOJ as the defendant, arguing that EOUSA is only a component of the DOJ and is not an "agency" that can be sued under FOIA. Mot., Dckt. No. 10, at 2-4. Plaintiff does not oppose the motion and "agrees" that the DOJ is the proper defendant in this action. Opp'n, Dckt. No. 13, at 2. Therefore, it is recommended that EOUSA be dismissed and that the DOJ be substituted as the proper defendant. See 5 U.S.C. § 552(a)(4)(B) (providing a limited waiver of the federal government's sovereign immunity for district courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant."); 5 U.S.C. § 552(f) (defining an "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency."); see also Hersh & Hersh v. U.S. Dep't of Health & Human Servs., 2007 WL 2155695, at *1 (N.D. Cal. July 26, 2007) (dismissing HHS components, leaving HHS as sole defendant).

III. Motion for Summary Judgment

The DOJ moves for summary judgment, arguing that it performed a search reasonably calculated to uncover all relevant documents and that defendant's search on plaintiff's FOIA request satisfies FOIA requirements. Dckt. No. 10 at 4-8.

In a FOIA case, "federal jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records." U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (internal quotation marks omitted). "Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements." Id. "The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not 'agency records' or have not been 'improperly' 'withheld.'" Id. at 142 n.3.

Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Lawyers Comm. for Civil Rights of S.F. Bay Area v. U.S. Dep't of Treasury, 534 F. Supp. 2d 1126, 1131 (N.D. Cal. 2008) ("As a general rule, all FOIA determinations should be resolved on summary judgment.").

An issue in many FOIA summary judgment motions is the agency's search. The agency must "demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents." Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995) (citing Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985)). The "issue to be resolved is not whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate." Id.

Plaintiff does not dispute that defendant performed a search reasonably calculated to uncover all relevant documents. Dckt. No. 13 at 2. Therefore, there is no genuine issue of material fact regarding whether the FOIA search that defendant conducted was adequate.

Nonetheless, plaintiff contends that defendant's motion for summary judgment should be denied because defendant did not determine whether to comply with plaintiff's request within twenty days of receiving it, as required by FOIA. Dckt. No. 13 at 3 (citing 5 U.S.C. § 552(a)(6)(A)(i) ("Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall--(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination.") and 28 C.F.R. § 16.6(b) ("Ordinarily, a component shall have twenty business days from when a request is received to determine whether to grant or deny the request. Once a component makes a determination to grant a request in whole or in part, it shall notify the requester in writing.")). Plaintiff argues that defendant did not respond to ...

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