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MOORE v. ASPIN

February 21, 1996

ROBERT W. MOORE, Plaintiff,
v.
LES ASPIN, et al., Defendants.



The opinion of the court was delivered by: SPORKIN

 This matter comes before the Court on defendant United States Department of Defense's motion to dismiss the complaint as moot, or in the alternative, for summary judgment. Plaintiff Robert W. Moore, who appears before this Court pro se, opposes the Department of Defense's motion.

 Plaintiff brings suit under the Freedom of Information Act, 5 U.S.C. § 552. Specifically, plaintiff seeks two distinct items of information from the Department of Defense: 1) the Stock Transfer Book of the Panama Railroad Company and 2) information relating to the transferability of stock to and from the United States Government. The Department of Defense contends, through the Declaration of Stewart Aly, Associate General Counsel for the Department of Defense, that it completed all required searches for the requested documents and that none of the searches yielded records responsive to plaintiff's FOIA request. The Department of Defense asks this Court to dismiss the case as moot, or in the alternative, to grant summary judgment.

 FACTUAL BACKGROUND

 The following facts are undisputed. By a letter dated July 6, 1993 to then-Secretary of Defense Les Aspin, plaintiff made a Freedom of Information Act (FOIA) request. The FOIA request was for records relating to certain stock transactions occurring between 1895 and 1904 involving shares in the Panama Railroad Company, as well as information pertaining to who the stockholders were as of June 15, 1993. Plaintiff also requested information relating to the transferability of stock to and from the United States Government. The Department of Defense issued an interim response, dated July 16, 1993, explaining that there was a backlog of FOIA requests and informing plaintiff that processing his request would take an unspecified amount of time.

 Plaintiff then appealed to the President of the United States, sending an appeal letter to the White House. In plaintiff's appeal, he claimed that Aspin was the President's subordinate and, therefore, the President's office was the appropriate place to file an FOIA appeal from a decision made by the Secretary of Defense. The plaintiff received no response from the President.

 When plaintiff filed suit in October 1993, the Department of Defense had not completed plaintiff's FOIA request. In December 1993, the Department of Defense informed plaintiff that it had completed its search and found no records responsive to plaintiff's FOIA request. Accordingly, the Department of Defense filed a motion to dismiss, or in the alternative, for summary judgment. This Court found that the Department of Defense had fulfilled its obligations under FOIA by conducting a reasonable search for responsive documents, and the case was dismissed without prejudice. Plaintiff was given thirty days to request another search for the specified documents. The search was to be conducted at plaintiff's expense. Plaintiff agreed to pay and timely reinstated his FOIA request.

 The Department of Defense completed the second search and again found no documents responsive to plaintiff's request. The Department of the Army, the Executive Agent for the Department of Defense in matters relating to the Panama Canal, also conducted an independent search for responsive records. Among the offices searched were the Department of the Army Headquarters at the United States Garrison in Panama, Headquarters at the United States Army Southern Command (including the office of the Staff Judge Advocate and the Command Historian) in Panama, the Secretary of the Army, and the Assistant Secretary of the Army. Upon completing a second search and finding no documents responsive to plaintiff's FOIA request, defendant now moves to dismiss the case as moot, or in the alternative, for summary judgment.

 MOTION TO DISMISS AND SUMMARY JUDGMENT STANDARDS

 In reviewing a motion to dismiss, a court must accept all well-pleaded allegations of the complaint as true and construe them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). A court may dismiss the complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 Summary judgment is available to the defendant in an FOIA case when the agency proves that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. Miller v. United States Department of State, 779 F.2d 1378, 1382 (8th Cir. 1985), citing Weisberg v. U.S. Department of Justice, 227 U.S. App. D.C. 253, 705 F.2d 1344, 1350 (D.C. Cir. 1983). The adequacy of the agency's search for requested documents is judged by a standard of reasonableness, i.e., the agency must show that it conducted a search reasonably calculated to uncover all relevant documents. 705 F.2d at 1383. The agency must show that it made a good faith effort to conduct a search for the requested records, using methods which reasonably can be expected to produce the information requested. Oglesby v. Department of the Army, 287 U.S. App. D.C. 126, 920 F.2d 57, 68 (D.C. Cir. 1990). There is no requirement that an agency search every record system. Id.

 ANALYSIS AND DECISION

 The issue in an FOIA case is not whether the agencies' searches uncovered responsive documents, but rather whether the searches were reasonable. Fitzgibbon v. U.S. Secret Service, 747 F. Supp. 51, 54 (D.D.C. 1990) citing Meeropol v. Meese, 252 U.S. App. D.C. 381, 790 F.2d 942, 952-53 (D.C. Cir. 1986). The Declaration of Stewart F. Aly, Associate Deputy General Counsel for the Department of Defense, indicates that the Department of Defense searched offices at the Department of Defense's Office of General Counsel and found no responsive documents. The declaration also states that the Department of the Army, the Executive Agent for the Department of Defense in matters relating to the Panama Canal, conducted an independent search for responsive records in the Office of the General Counsel of the Army, the Office of the Staff Judge Advocate, Headquarters at the United States Army Southern Command in Panama, and the Mobile District Office of the Army Corps of Engineers. The search did not uncover any responsive documents.

 Plaintiff proffered nothing to indicate that the Department of Defense's searches were unreasonable. Indeed, plaintiff appears to concede that the Department of Defense has made a reasonable search. In plaintiff's proposed findings of fact, he states that the "Panama Railroad Company share certificates and stock book were not produced, ...


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