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Canning v. U.S. Dep't of Defense

August 6, 2007

GEORGE CANNING, PLAINTIFF,
v.
U.S. DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff, George Canning, brings this action pro se against the United States Department of Defense ("DoD"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks (1) all information concerning the training of Virginia State Police ("VSP") at Fort Picket, Virginia in September 1986 and (2) quarterly reports filed by the Secretary of the Army with DoD concerning military assistance to civilian law enforcement in 1986. This matter is now before the Court on Defendant's Motion for Summary Judgment. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Motion is granted.

I. BACKGROUND

A. Statement of Genuine Issues

Local Rule 7.1(h) requires both parties to identify with particularity those material facts necessary to support their motions for or in opposition to summary judgment. Specifically, Rule 7.1(h) provides:

Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless a fact is controverted in the statement of genuine issues filed in opposition to the motion.

Local Rule 7.1(h) (emphasis added).

This Circuit has held that "[i]f the party opposing the motion fails to comply with this local rule, then the district court is under no obligation to sift through the record and should [i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [7.1(h)] statement." Securities and Exh. Comm'n v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000) (internal citations omitted). See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (concluding that Local 7.1(h) "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record."). This Circuit demands strict compliance with this Rule. See id.

Plaintiff has failed to comply with both Local Rule 7.1(h) and Fed. R. Civ. P. 56(e).*fn1 While Plaintiff's "Statement of Material Facts in Dispute" may be "separate," it fails to satisfy the purposes of a Rule 7.1(h) statement because it "blend[s] factual assertions with legal argument[.]" Colbert v. Chao, 2001 WL 710114, *8 (D.D.C.) (citing Jackson, 101 F.3d at 153). Accordingly, the material facts submitted by Defendant will be deemed admitted because they have not been adequately controverted.

B. Plaintiff's FOIA Requests

1. 1998 FOIA Request to the Department of the Army

By letter dated August 17, 1998, Plaintiff submitted a FOIA request to the Department of the Army FOIA Office seeking "all information concerning the training of Virginia State Police personnel at Fort Pickett, Virginia in late September 1986 in preparation for a joint federal-state search-and-seizure raid in Leesburg, Virginia in October 1986, on offices of publishers associated with Lyndon H. LaRouche, Jr." (Plaintiff's "1998 Request") Am. Compl. ¶ 12. By letter dated November 4, 1998, the Army FOIA Office informed Plaintiff that it was referring his request to the Office of the Deputy Chief of Staff for Operations and Plans ("DCSOPS") FOIA Office at the Pentagon. See Def.'s Statement of Material Facts, ¶ 2.

The DCSOPS FOIA Office assigned the search for responsive documents to the two offices where such documents would most likely be located: (1) the Security, Force Protection and Law Enforcement Division ("DAMA-ODL");*fn2 and (2) the Director of Military Support/Military Support Division (DAMO-ODS").*fn3 See id. ¶ 3.

On December 1, 1998, DAMO-ODL conducted a "visual, physical and electronic check of current records held and Standard Forms 135 indicating those records transferred to the Federal Record Center, but still in custody of the agency." Id. ¶ 5. This search revealed no records responsive to Plaintiff's request, and DAMO-ODL provided the DCSOPS FOIA Office with a no records response. See id.

In January 1999, DAMO-ODS conducted a "visual, physical and electronic title and key word search of [its] current and retired records" and coordinated its search with elements of other Army agencies including the U.S. Army National Guard Bureau, U.S. Army Forces Command, the Military District of Washington and the U.S. Army Training and Doctrine Command. See id. ¶ 7. This search revealed no records responsive to Plaintiff's request. See id.

By letter dated January 13, 1999, the DCSOPS FOIA Office informed Plaintiff that the requested information did not fall under its "functional area of responsibility" and suggested that he request the information from the Army Center for Military History ("CMH"). See id. ¶ 9.

2. 1999 FOIA Report

a. CMH

By letter dated January 19, 1999, Plaintiff submitted a FOIA request to CMH seeking the same information he requested in his 1998 Request to the Department of the Army (Plaintiff's "1999 CMH Request"). See Am. Compl. ¶ 22. In February 1999, the CMH FOIA Office searched for responsive documents among the "records and manuscript files, including computer indices and microfilm, currently maintained by the Department of the Army, U.S. Army Center of Military History, as well as transfer documents for historical files transferred to storage." Def.'s Statement of Material Facts, ¶ 16. The search also included a "key word search of Historical Reference Collection 2 and Historical Manuscript Collection 2 [which] did not result in any documents concerning the training of Virginia State Police personnel at Fort ...


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