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

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 8, 2011

DENNLY R. BECKER, PLAINTIFF,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE, DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

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 any of plaintiff's inquiries until after plaintiff filed his complaint. Dckt. No. 13 at 3-4. However, because there is no genuine issue of fact regarding whether the DOJ "improperly" "withheld" any "agency records," the DOJ is entitled to summary judgment on plaintiff's FOIA claim.

IV. Plaintiff's Request for Costs

In opposition to the DOJ's MSJ, plaintiff contends that the court should "grant the plaintiff summary judgment for court filing fees and costs based on the defendant's failure to comply with 5 U.S.C. § 552 and 28 C.F.R. 16 Subpart A." Dckt. No. 13 at 4. Plaintiff argues that he should be entitled to costs and fees under 5 U.S.C. § 552(a)(4)(E), which provides that "[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." A complainant "substantially prevailed" if he "has obtained relief through either-- (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial." Id. (quoting 5 U.S.C. § 552(a)(4)(E)).

However, plaintiff has not provided any authority supporting his position that the DOJ's alleged late but otherwise adequate FOIA response, without more, entitles plaintiff to a cost award. In fact, plaintiff has not shown that he has "substantially prevailed" for purposes of 5 U.S.C. § 552(a)(4)(E), since he has not obtained a judicial order, an enforceable written agreement or consent decree, or a voluntary or unilateral change in position by the DOJ. See Delvecchio v. Smith, 590 F. Supp.2d 1378, 1383 (S.D. Fla. 2008) (rejecting requesters' fees and costs request based on agency's untimely FOIA response, because "as the Petitioners have not substantially prevailed in this action, they are not entitled to either fees or costs"). As the DOJ notes, plaintiff "received no records, he lost this FOIA suit, and under 5 U.S.C. § 552(a)(4)(E) and Delvecchio his loss prevails over his untimely-FOIA response argument."*fn3 Dckt. No. 14 at

2. Therefore, plaintiff's request for fees and costs should be denied.*fn4

V. Conclusion

Accordingly, IT IS HEREBY ORDERED that:

1. The August 10, 2011 hearing on defendants' motion for dismissal and summary judgment, Dckt. No. 10, is vacated.

2. Plaintiff's request to allow a late filing of his opposition, Dckt. No. 12, is granted.

3. The status (pretrial scheduling) conference currently set for hearing on October 12, 2011 is vacated.*fn5

IT IS FURTHER RECOMMENDED that:

1. The DOJ's motion for dismissal of defendant EOUSA, Dckt. No. 10, be granted; EOUSA be dismissed from this action; and the DOJ be substituted as the proper defendant.

2. The DOJ's motion for summary judgment, Dckt. No. 10, be granted.

3. Plaintiff's request for fees and costs, Dckt. No. 13, be denied.

4. The Clerk be directed to enter judgment for the DOJ and close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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