United States District Court, District of Columbia
March 29, 2000
GREGORY LEE LOONEY, PLAINTIFF,
JOSIE WALTERS-TUCKER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Plaintiff, Gregory Lee Looney, was convicted of the federal
crime of bank robbery, 18 U.S.C. § 2113(a), (d), for his role in
a robbery of the United Federal Savings Bank in Des Moines, Iowa
on July 25, 1990. He believes that the bank may not have been
federally insured by the Federal Deposit Insurance Corporation
("FDIC") on the date of the robbery — an essential element of
proof on the federal offense. In pursuit of evidence to support
a motion to vacate his conviction on this basis, plaintiff
submitted a Freedom of Information Act request to the FDIC and
the Office of Thrift Supervision. Specifically, plaintiff sought
records regarding the FDIC-insured status of the United Federal
Savings Bank in Des Moines, Iowa on July 25, 1990. Having failed
to receive a substantive response to his request, plaintiff
filed this, action on February 11, 1998.
Defendant's initial motion for summary judgment was denied
because the declarations in support of the motion identified a
search for records regarding a bank with a similar name but at
the wrong address in Des Moines. A second motion filed by
defendant was supported by new declarations that detailed a
search, but factual issues were raised by that motion that
caused the Court to appoint counsel for plaintiff. Defendant
eventually agreed to voluntarily withdraw its second motion.
Three status conferences were held with counsel for both sides
in an attempt to satisfy the plaintiffs FOIA request. Defendant
filed additional declarations regarding the completeness of its
search for responsive records in anticipation of the status
conferences. Instead of clarifying the issues, defendant's
supplemental declarations contradicted its earlier statements
and only raised additional questions about the completeness of
Unsuccessful at resolving the matter through status
conferences, the parties were ordered to file motions for
summary judgment "[i]n order to identify and resolve all issues
remaining in this Freedom of Information Act case." See Order
of September 22, 1999. Plaintiffs motion clearly articulates the
wholly inadequate search for responsive records by defendant in
the past and the inconsistencies in its various declarations. In
response, defendant conducted a further search for responsive
records on November 26, 1999. This new search uncovered five
records that were produced in their entirety, three of which had
not been previously produced.
Defendant argues that because all responsive records have now
been produced, the case is moot and this Court is without
jurisdiction to entertain it. A case is not moot, however,
unless "the parties lack a legally cognizable interest in the
outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631,
99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491
(1969)). Plaintiff has a. cognizable interest in having this
Court determine whether the search for records was adequate
under the standards for adequate records searches required under
the FOIA by the relevant case law. The cases cited by defendant
are not to the contrary. All but one of the cases cited by
defendant in support of its mootness argument involved requests
for specific records that
had been produced in full and in which the plaintiff conceded
that no further relief was available under the FOIA. In the one
exception, DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir.
1984), the district court denied the plaintiffs FOIA request
after finding that all responsive records had been produced to
him. In that case, that was the only issue to be decided under
the FOIA. That is not the case here. In a FOIA case, courts
always have jurisdiction to determine the adequacy of a search
by the agency for agency records duly requested under the FOIA.
5 U.S.C. § 552(a)(4)(B). There is nothing frivolous about this
lawsuit, as has been apparent to this Court throughout this
litigation. This Court has subject matter jurisdiction to
determine whether FDIC's search for responsive records was
adequate. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90
L.Ed. 939 (1946).
B. Adequacy of Search
The FOIA requires an agency to conduct only a reasonable
search for requested records using "methods reasonably expected
to produce the information requested." Oglesby v. United States
Dep't of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990). The agency
must establish through affidavits or declarations the adequacy
of both its search methods (where and how it looked for
responsive records) and the scope of its search (what it was
looking for). Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.
1982). The affidavits or declarations need not "set forth with
meticulous documentation the details of an epic search for the
requested records," Perry v. Block, 684 F.2d at 127, but must
show "that the search method was reasonably calculated to
uncover all relevant documents." Weisberg v. United States
Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir. 1984).
Defendant's most recent declarations provide an adequate
description of the record systems searched, the rationale for
why these systems were the ones most likely to contain
responsive records, the persons conducting the search and the
methods used to conduct the search. See Declarations of
Fredrick L. Fisch, Valerie J. Best, Dorlisa L. Raney, William V.
Farrell and Gary L. Bowman, appended to Defendant's Renewed
Motion to Dismiss, filed December 1, 1999.
Plaintiff and his counsel, however, are appropriately
"troubled" by the fact that defendant had previously sworn that
records did not exist only to have them produced as a result of
defendant's latest search: "The government's technique of
submitting successive declarations leaves those opposing the
government in litigation to wonder — is this declaration
complete and accurate? What else is missing?" See Plaintiffs
Opposition, at 6. In reviewing the somewhat contradictory
declarations of defendant, the Court relies on those filed in
support of its present Renewed Motion, however, because they are
neither conclusory nor incomplete and because, as a result of
the prodding of the Court and plaintiffs counsel, the Court now
is satisfied that the agency has finally got it right, that its
most recent search is adequate. See The Nation Magazine v.
United States Customs Service, 71 F.3d 885, 890 (D.C.Cir.
1995). "[I]n the absence of countervailing evidence or apparent
inconsistency of proof, affidavits that explain in reasonable
detail the scope and method of the search conducted by the
agency will suffice to demonstrate compliance with the
obligations imposed by the FOIA." Perry v. Block, 684 F.2d at
127. This standard has now been satisfied.
Based on the record before it, the Court does not find that
defendant's prior erroneous declarations were made in bad faith.
At most, the record supports a finding that defendant was
careless in complying with its FOIA obligations. Nor does the
Court agree with plaintiffs assertion that the FDIC's conduct
here demonstrates that an agency can simply file successive
declarations with impunity. Declarations are made on penalty of
perjury, see 28 U.S.C. § 1746, and an agency's failure
to comply with its FOIA obligations may require it to pay
plaintiffs attorneys' fees, 5 U.S.C. § 552(a)(4)(E).
Furthermore, in appropriate cases, discovery may be conducted as
to the adequacy of the search. Weisberg v. United States Dep't
of Justice, 627 F.2d 365, 371 (D.C.Cir. 1980). If the agency
acts arbitrarily or capriciously or fails to comply with a court
order, an investigation may be initiated to determine whether
disciplinary action is warranted and responsible employees may
be held in contempt. 5 U.S.C. § 552(a)(4)(F), (G). Here, all
that was needed was to hold the agency to the requirement that
it provide sufficiently detailed declarations and to deny its
motions for summary judgment until it provided declarations
containing more than conclusory assertions. See Steinberg v.
United States Dep't of Justice, 23 F.3d at 548, 552 (D.C.Cir.
In a letter to his counsel attached to his opposition,
plaintiff seeks a "certified sworn statement" attesting to the
fact that the United Federal Savings Bank was not insured on
July 25, 1990. The records produced by defendant strongly
suggest an answer, albeit not one to plaintiffs liking. See
Declaration of Valerie J. Best, ¶ 10, Exhs. C and D; Declaration
of Dorlisa L. Raney, ¶ 9, Attachments A-C; Declaration of
William V. Farrell, ¶ 9, Attachment 1. Nor is there any
provision in the FOIA that would entitle plaintiff to such a
statement. Plaintiff cannot obtain a definitive ruling on the
federal jurisdictional basis of his conviction in this FOIA
action. That issue can only be resolved by the sentencing court
upon consideration of a motion to vacate pursuant to
28 U.S.C. § 2255. This FOIA action has served its only legitimate function —
to determine whether a thorough and adequate search of agency
records was conducted and whether all documents not exempt from
disclosure have been disclosed.
Plaintiff also argues that the insurance information provided
for the main branch of the United Federal Savings Bank is
irrelevant as to the insurance status of the branch bank
actually involved in the robbery. This argument ignores the
corporate structure of banks and their branches. It is not the
branch that is insured, but the deposits in the bank.
12 U.S.C. § 1815; see also 12 U.S.C. § 1828(a)(2) (requiring display of
bank's FDIC-insured status "at each place of business maintained
by such bank"); 12 U.S.C. § 1828(d)(1) (prohibiting nonmember
insured banks from operating a new branch without prior FDIC
approval). Because defendant now has conducted an adequate
search for responsive records and produced all records it has
located, its motion for summary judgment must be granted.
Plaintiffs FOIA claim has finally resulted in the production of
the requested information. His continuing disagreement with the
accuracy of the information provided is due solely to the fact
that he does not like the result.
C. Filing Fees and Costs
Plaintiff is a federal prisoner and therefore is required to
pay the filing fee despite having been granted leave to proceed
in forma pauperis. See 28 U.S.C. § 1915(b)(1); Order of
February 11, 1998. Because it is patently obvious, however, that
plaintiff would never have received the records produced without
filing this action, the Court determines sua sponte that he
has "substantially prevailed" for purposes of recovering his
litigation costs, pursuant to 5 U.S.C. § 552(a)(4)(E). See
Fed.R.Civ.P. 54(d)(1) (costs "shall be allowed as of course" to
the prevailing party); Cuneo v. Rumsfeld, 553 F.2d 1360
(D.C.Cir. 1977) (plaintiff substantially prevailed where federal
agency voluntarily released information sought). The defendant
therefore must pay plaintiff the cost of his having filed this
action. As for any motion for attorneys' fees, the Court will
require the parties to confer in an attempt to reach agreement
before filing any motion for attorney's fees. L.Cv.R. 54.2.
Finally, the Court expresses its gratitude to Elaine
Mittleman, Esquire, appointed counsel in this case, who has
pursued her client's interests diligently and in
the best traditions of the profession. An appropriate Order
accompanies this Memorandum Opinion.
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