United States District Court, D. Columbia
August 31, 2005.
GUILLERMO RUIZ GARCIA, Plaintiff,
DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, Defendant.
The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
Plaintiff, a federal inmate proceeding pro se, brought this
action requesting a writ of mandamus against defendant. Plaintiff
alleges that defendant failed to properly respond to his records
request pursuant to the Freedom of Information Act ("FOIA"),
5 U.S.C. § 552. Defendant has filed a motion for summary judgment
and a motion to deem the case conceded or moot. For the reasons
stated below, the Court will dismiss the case as moot.
In a letter dated June 7, 2004, plaintiff sent a FOIA request
to the Executive Office for United States Attorneys ("EOUSA").
Defendant's Motion for Summary Judgment, ("Deft's Mot.") at 2,
Declaration of Anthony J. Ciccone ("Ciccone Decl."), Exhibit
("Ex.") 2 at 2. Plaintiff requested all records maintained by the
agency "under [his] name and/or Identifier to [his] name" and all
records regarding "bond information, judgment information,
commercial crimes, case bonding information, and commercial crimes bonding information." Id. Plaintiff
stated that he agreed to pay all reasonable costs associated with
the records search and, if he were found indigent, plaintiff
requested that the EOUSA grant a fee waiver. Id.
On August 11, 2004, the EOUSA acknowledged receiving
plaintiff's FOIA request. Id., Ex. 3. The EOUSA informed
plaintiff that the agency makes every effort to process requests
within 20 days, with the exception of requests for a large amount
of documents, such as plaintiff's request. Id. Plaintiff was
advised that processing his request could take up to nine months.
Id. The EOUSA also advised plaintiff that by making his
request, he agreed to pay $25, unless a fee waiver request was
Plaintiff sent a fee waiver request to the EOUSA on October 20,
2004. Id., Ex. 4. As grounds for his request, plaintiff stated
that he was indigent and that there was a public interest in
exposing the corruption within the United States Attorney's
Office (presumably the Southern District of Florida office which
prosecuted him), specifically "[a]rrresting and prosecuting
without bonds or surety bonds." Id. Before the EOUSA had made a
decision on plaintiff's fee waiver request or had fully processed
his records request, plaintiff filed this action on November 5,
2004. See Complaint ("Compl."). The complaint alleges that the
EOUSA failed to answer the fee waiver request and failed to
respond to his FOIA request within the statutory deadlines. Id.
On February 3, 2005, the EOUSA notified plaintiff of its
determination on his FOIA request. Deft's Mot., Ciccone Decl.,
Ex. 6. First, the EOUSA informed plaintiff that it was denying
his fee waiver request because disclosure of the records was not
in the public interest and that his indigency was not a basis for
a fee waiver. Id. at 1-2. The EOUSA further stated that a
search of the records in the United States Attorney's Office for
the Southern District of Florida yielded approximately 1,750 pages of responsive documents. Id. According to the
EOUSA, plaintiff was entitled to 100 pages free of charge. Id.
The EOUSA released 99 pages in full and one page in part, with
redactions pursuant to FOIA Exemption 7 (C) and the Privacy Act,
5 U.S.C. § 552a(j)(2). Id. at 2. To receive the additional 1650
pages, the EOUSA requested that plaintiff make a payment of $165.
Id. at 3.
On February 13, 2005, plaintiff told the EOUSA that he would
narrow his request in order to reduce the processing fees.
Defendant's Motion to Deem Action Conceded, or in the
Alternative, Dismiss as Moot, Ex. 1. Plaintiff limited his
request to "all criminal bonds, bonding, judgment numbers: Case
No. 97-00099-CR-DLG and Judgment in Criminal Case No.
1:97CR00099-001." Id. In response to this modified request, on
May 31, 2005, the EOUSA released 23 pages of documents responsive
to plaintiff's narrowed request and did not assess any processing
fees. Id., Ex. 2.
Plaintiff administratively appealed the EOUSA's decision to the
Office of Information and Privacy ("OIP"). Reply in Support of
Defendant's Motion to Deem Action Conceded, or in the
Alternative, Dismiss as Moot, and Support of Defendant's Motion
for Summary Judgment, Ex. 3. Plaintiff alleged that the EOUSA's
document disclosure was inadequate because it did not contain a
"Charge/Bond" and a "Fiduciary Tax Return Obligation for the
Charge/Bond." Id. On August 5, 2005, the OIP notified plaintiff
that it would not act on his appeal due to the pending litigation
in this Court. Id., Ex. 4.
Plaintiff filed this action as a petition for a writ of
mandamus. Title 28, Section 1361 provides that "[t]he district
court shall have jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff." A writ of
mandamus is an extraordinary remedy to be utilized only under
exceptional circumstances. Chaplaincy of Full Gospel Churches v.
Johnson, 276 F.Supp.2d 82, 83 (D.D.C. 2003), citing Haneke v.
Sec'y of Health, Educ. & Welfare, 535 F.2d 1291, 1296 (D.C. Cir.
1976). In order to obtain mandamus relief, plaintiff must show
that (1) he has a clear right to relief; (2) the defendant has a
clear duty to act; and (3) there is no other adequate remedy
available to the plaintiff. Swann v. Clinton, 100 F.3d 973, 977
n. 1 (D.C. Cir. 1996) (citations omitted); Atl. Tele-Network,
Inc. v. Inter-Am. Dev. Bank, 251 F.Supp.2d 126, 131 (D.D.C.
2003). The plaintiff bears a heavy burden of showing that his
right to a writ of mandamus is "clear and indisputable." In re
Cheney, 334 F.3d 1096, 1102, 1107 (D.C. Cir. 2003); Chaplaincy
of Full Gospel Churches, 276 F.Supp.2d at 84.
In the absence of a duty to act by the public official, there
can be no mandamus relief. Black v. Snow, 272 F.Supp.2d 21, 28
n. 6 (D.D.C. 2003). Determining if a defendant has a "clear duty
to act" depends on the nature of the duty at issue, whether it is
ministerial or discretionary. Mandamus is only available where
"the duty to be performed is ministerial and the obligation to
act peremptory and clearly defined." 13th Reg'l Corps. v. Dep't
of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980). A
ministerial duty is one that admits of no discretion, so that the
official has no authority to determine whether to perform the
duty. Swann, 100 F.3d at 977. Courts do not have authority
under the mandamus statute to order any government official to
perform a discretionary duty. Id.
Defendant initially moved for summary judgment based on
plaintiff's alleged failure to exhaust his administrative
remedies. Subsequent to the filing of that motion, plaintiff
narrowed his FOIA request. Defendant claims it then provided
plaintiff with all documents responsive to his request. Defendant, therefore, moves to dismiss the case as moot.
Plaintiff does not dispute that he received the 23 pages of
documents from defendant that were responsive to his request.
However, plaintiff argues that the case is not moot because
defendant failed to disclose his "criminal bond." Plaintiff's
Opposition to Motion to Dismiss, p. 1.
To demonstrate that the FOIA search for records was adequate,
an agency must show "viewing the facts in the light most
favorable to the requester, that . . . [it] `has conducted a
search reasonably calculated to uncover all relevant documents.'"
Steinberg v. United States Dep't of Justice, 23 F.3d 548, 552
(D.C. Cir. 1994) (quoting Weisberg v. United States Dep't of
Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). To meet its
burden, the agency may submit affidavits or declarations that
explain in reasonable detail and in a non-conclusory fashion the
scope and method of the agency's search. Perry v. Block,
684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary
evidence, such affidavits or declarations are sufficient to
demonstrate an agency's compliance with the FOIA. Id. at 127.
However, the agency must show that it made a "good faith effort
to conduct a search for the requested records, using methods
which can be reasonably expected to produce the information
requested." Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C.
Cir. 1990); see Campbell v. United States Dep't of Justice,
164 F.3d 20, 27 (D.C. Cir. 1998). In determining the adequacy of a
FOIA search, the Court is guided by principles of reasonableness.
Oglesby, 920 F.2d at 68.
It is apparent from the declaration submitted by defendant that
the EOUSA 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." Moore v. Aspin,
916 F.Supp. 32, 35 (D.D.C. 1996) (citing Oglesby, 920 F.2d at 68).
Defendant conducted a search of the records in the United States Attorney's Office for the Southern District of Florida,
the office that prosecuted defendant. See Ciccone Decl., ¶ 7.
It was reasonable for the EOUSA to believe that a search of that
office's system of records would yield the information requested.
And plaintiff has not identified other files that defendant
should have searched. "Mere speculation that as yet uncovered
documents may exist does not undermine the finding that the
agency conducts a reasonable search for them." SafeCard
Services, Inc., 926 F.2d at 1201. Here, the search for
plaintiff's requested records was adequate to fulfill the EOUSA's
obligations under the FOIA.
To prevail in a FOIA case, a plaintiff must show that an agency
has (1) improperly (2) withheld (3) agency records. United
States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142
(1989); United We Stand America, Inc. v. IRS, 359 F.3d 595, 598
(D.C. Cir. 2004). A suit is only authorized under the FOIA against
federal agencies to remedy an agency's improper withholding of
information. Kissinger v. Reporters Comm. for Freedom of the
Press, 445 U.S. 136, 150 (1980); see also
5 U.S.C. § 552(a)(4)(B) & (f)(1). Once the requested records have been
produced there is no longer a case or controversy and the FOIA
action becomes moot. See Armstrong v. Executive Office of the
President, 97 F.3d 575, 582 (D.C. Cir. 1996); Trueblood v. U.S.
Dep't of the Treasury, 943 F.Supp. 64, 67 (D.D.C. 1996).
There is no factual dispute that plaintiff received from
defendant documents that he sought in his modified FOIA request.
However, plaintiff alleges that the defendant failed to release
the CRIMINAL BOND that was created on my case the
Bond that is created on presentment/indictment for
each count of indictment, that is created for each
arrest, because according to 27 C.F.R. 72.11 "ALL
CRIMES IS COMMERCIAL" and a bond must be file[d] in
the Commercial Registry for that charge
presentment/indictment. If this bond is not created
and file[d] within the Commercial Registry it is a
fraud and "DISHONOR." Also this bond must be a
fiduciary obligation by statute posted filed and the
TAX return must be returned. Plaintiff's Opposition to Motion to Dismiss, p. 1. It is not
clear to the Court whether plaintiff knows that such a document
exists or is merely speculating that it is in defendant's
possession. In either event, the Court's inquiry regarding the
adequacy of the search focuses on the search itself, not its
results. Weisberg v. DOJ, 745 F.2d at 1485. An agency's failure
to find a particular document does not undermine the
determination that the search was adequate. Wilber v. CIA,
355 F.3d 675, 678 (D.C. Cir. 2004); Nation Magazine v. United States
Customs Serv., 71 F.3d 885, 892 n. 7 (D.C. Cir. 1987). Under
these circumstances, plaintiff is not entitled to mandamus
relief. Because the controversy in this case is now moot,
defendant's motion to dismiss will be granted. An appropriate
order accompanies this Memorandum Opinion.
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