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Kinard v. United States Dep't of Justice

June 27, 2006

JOSEPH KINARD, PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEYS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

This matter arises from Plaintiff's Freedom of Information Act ("FOIA") request to the Executive Office for United States Attorneys ("EOUSA"). Proceeding pro se, Plaintiff brings this action pursuant to FOIA, 5 U.S.C. §552; the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §2671, et seq.; and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has named as Defendants the EOUSA and three of its employees in their individual and official capacities. Defendants have filed a motion to dismiss and for summary judgment, which Plaintiff opposes. For the reasons set forth below, the motion will be granted.

I. Background

Plaintiff was acquitted of a possession of a firearm offense on January 24, 1997, in the United States District Court for the District of Columbia. Compl. ¶¶ 5-6; Declaration of Joseph Kinard ("Kinard Decl.") at 1. The case was prosecuted by Assistant United States Attorney ("AUSA") Kevin E. Byrnes. Compl. ¶ 5. In June, 1997, in the Superior Court of the District of Columbia,Plaintiff was convicted at trial.*fn1 Id. ¶ 7. The prosecutor of that case was Mr. Byrnes. Id.

In an undated letter received by the EOUSA on September 21, 2004, Plaintiff requested the oath of office of AUSA Byrnes and the oaths of all the AUSAs in the District of Columbia office, pursuant to FOIA. Declaration of John W. Kornmeier ("Kornmeier Decl.") ¶ 4; see also id., Ex. A. Plaintiff subsequently informed the EOUSA that his request was limited to a copy of Mr. Byrnes' oath of office. Id. ¶ 6; see also id., Ex. C.The EOUSA sent Plaintiff's request to its Office of Personnel. Id. ¶ 7.

On November 22, 2004, the EOUSA informed Plaintiff that it could not locate any records responsive to his request. Id. ¶ 8; see also id., Ex. D. Since Mr. Byrnes had left the employ of the U.S. Attorney in 2000, the EOUSA explained, his personnel file had been forwarded to the National Personnel Records Center in St. Louis, Missouri. Id. The EOUSA provided Plaintiff the address of the Records Center and advised him to file his FOIA request with that office. Id.

Plaintiff appealed this decision to the Office of Information and Privacy ("OIP"). Id. ¶ 8 n. 4. The present action was filed on March 3, 2005. Due to the initiation of this litigation by Plaintiff, the OIP closed his appeal. Id.

II. Standard of Review

Pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants move to dismiss on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. A complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). A court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004); see also Kingman Park, 348 F.3d at 1040. Thus, in resolving a Rule 12(b)(1) or 12(b)(6) motion, the court must treat the complaint's factual allegations as true and draw all reasonable inferences therefrom in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003), cert. denied, 540 U.S. 1149 (2004); see also Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003), cert. denied, 540 U.S. 1218 (2004); Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

However, a Plaintiff has the burden of proving subject matter jurisdiction by a preponderance of the evidence. Felter v. Norton, 412 F. Supp. 2d 118, 122 (D.D.C. 2006) (citation omitted).

In resolving a motion to dismiss for failure to state a claim, pro se complainants are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Accordingly, pro se plaintiffs are not required to use specific legal terms or phrases, and are granted "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citing Conley, 355 U.S. at 45-46).

Defendants also move for summary judgment. Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly,963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). Agency affidavits or declarations must be "relatively detailed and nonconclusory." SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). Such affidavits or declarations are accorded "a presumption of good faith, which cannot ...


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