May 29, 2008
JOHN DOE, APPELLANT,
DISTRICT OF COLUMBIA METROPOLITAN POLICE DEPARTMENT, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CAB-4244-03) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Submitted March 13, 2008
Before FARRELL and THOMPSON, Associate Judges, and BELSON, Senior Judge.
Appellant, whom we refer to as "John Doe" or "Doe,"*fn1 filed an action in the District of Columbia Superior Court under the District of Columbia Freedom of Information Act ("FOIA")*fn2 against former Chief Charles Ramsey of the Metropolitan Police Department (MPD).*fn3 Doe, who is incarcerated, sought documents that he believed would help him in a collateral challenge of his 1999 conviction, in the United States District Court for the Eastern District of Virginia, for conspiracy to distribute cocaine and heroin. After the trial court granted the District's motion for summary judgment, Doe moved for relief from that judgment pursuant to Super. Ct. Civ. R. 60 (b). Upon the court's denial of his Rule 60 (b) motion, Doe moved to amend that ruling pursuant to Super. Ct. Civ. R. 59 (e). The court denied that motion as well. In this appeal, Doe contends that the trial court erred in denying his Rule 60 (b) and 59 (e) motions. He also asserts that he was not served with the District's motion for summary judgment, that the trial court failed to give him timely notice of its entry of summary judgment, and that there exists a material factual dispute that made summary judgment for the District improper. We reverse and remand.
Doe is serving a sentence of 292 months for his conviction of conspiracy. According to his FOIA request, which is attached as an exhibit to his FOIA complaint, the government alleged that he was part of a conspiracy that existed from 1986 until 1998. His FOIA request was for documents that would show that, in 1989 or 1990, he reported his co-conspirators to MPD Detective Daniel Villare as participants in a murder, thereby (Doe claims) terminating his role in any conspiracy that then existed.*fn4 Specifically, Doe's letter stated that "[t]he information requested is pertained to my 'roll' [sic] as a witness in a homicide that transpired . . . in the District of Columbia. In which, the detective assigned to the investigations was Daniel Villare from the 'Redrum' homicide team."*fn5 Doe's FOIA complaint, which he filed on May 22, 2003, asserts that he and Detective Villare signed a "contract" stating that Doe would "never be a government's witness in any public court,"*fn6 but that the information that Doe supplied to the detective culminated in an arrest of the killer. The complaint also asserts that Doe never received a response, from either MPD or the Mayor, to his repeated requests.*fn7
At the time he filed his FOIA complaint, Doe was incarcerated at the Allenwood federal correctional facility ("FCI") in Pennsylvania. Subsequently, he was transferred to the FCI in Gilmer, West Virginia; then to the FCI in Memphis, Tennessee. The Superior Court docket sheet reflects that on August 23, 2004, the court docketed Doe's praecipe notifying the court of his change of address.*fn8 The "certificate of service" portion of Doe's change-of-address notice contained in the Superior Court jacket states that a copy was sent to counsel for the District.
On August 27, 2004, four days after the court received and docketed Doe's change-of-address praecipe, the District filed a motion for summary judgment. The District's motion stated that "[a] search of all data bases containing information as to confidential sources was searched in an effort to locate any documents relating to [Doe] and to identify any assistance provided by [Doe]," but that "[n]o information pertaining to [Doe] was recovered." The District's brief in support of its summary judgment motion asserted that "[a] search for the requested records was previously performed" and explains that the District's counsel also [C]aused a new search to be made of the department's database in an effort to locate the subject documents. On or about March of, [sic] 2004, a detective from the Metropolitan Police Department searched a computer database, WACIIS (Washington Area Criminal Intelligence Investigative System), to which only District of Columbia Metropolitan Police Department authorized personnel have access, for the subject records. The detective used all the information that plaintiff provided to this defendant in order to locate the requested documents, which allegedly contain information pertaining to plaintiff. This database is the only source of research that would contain information from 1989 or 1990 and was thoroughly searched in an attempt to uncover the subject Metropolitan Police Department document records.
The District's motion was accompanied by the declaration of MPD Detective Stanley Farmer, the MPD employee who conducted the search. Detective Farmer stated the following in his declaration:
I am authorized to use the computer database WACIIS, Washington Area Criminal Intelligence Investigative System. I use this database in the normal course of my duties as a Detective and I am familiar with the program. I was contacted in this case to investigate whether [ Doe] had ever acted as an informant to a homicide back in 1989 or 1990. In order to perform this search I obtained all information that [Doe] had provided in reference to said homicide. This information included that the victim was a Cuban man, the murder took place in 1989 or 1990, the murder took place in the District of Columbia in the interior of a basement, names of persons involved (2 full names and 3 first names), and that after learning this information, [Doe] reported to the REDDRUM Homicide Division of the Metropolitan Police Department and spoke with a Detective Daniel Villare. Using the provided information I thoroughly searched the database looking for any connection [Doe] may or may not have had to a homicide investigation. This investigation took place on or about March 1, 2004. After a thorough search using all of [Doe's] provided information, I could not recover any information or evidence that suggested that [Doe] had ever previously acted, in any capacity, as an informant to a homicide.
On September 23, 2004, the trial court granted the District's unopposed motion for summary judgment, stating that, in light of Detective Farmer's declaration that he "searched the relevant database and found nothing," "there is nothing to compel here."
Doe alleges that he would have opposed the District's motion for summary judgment if he had received it, but that -- as shown on the District's certificate of service -- the District mailed the motion to the FCI in West Virginia, where Doe no longer resided. The court's September 23, 2004 summary judgment order shows that it, too, was mailed to Doe's prior address at the FCI in Gilmer, West Virginia, despite the fact that, a month earlier, the clerk's office had docketed Doe's change of address. The court's mailing to Doe was returned, with the envelope marked "Not deliverable as addressed - unable to forward - return to sender - cannot identify by name or number."*fn9
Doe states that on November 8, 2005, unaware of the motion for summary judgment or the court's entry of summary judgment against him, he mailed a letter to the Superior Court to inquire about the status of his case. In reply to Doe's inquiry, the court mailed Doe a copy of the court's summary judgment ruling. Doe asserts that he received this mail on December 12, 2005, and, on that same day, submitted a motion to vacate the judgment as void pursuant to Super. Ct. Civ. R. 60 (b)(4). A copy of this motion is not included in the parties' appendices and we have been unable to locate a copy of it in the Superior Court record. The District's brief appears to acknowledge, however, that "[in his Rule 60 (b) motion], [Doe] urgued [sic] that the order granting summary judgment should be vacated, because the District's motion had been served by mailing it to a prison from which he had been transferred and the order granting the summary judgment had also been mailed to a prior prison address."
The trial court denied Doe's Rule 60 (b) motion on January 17, 2006. The court's order denying the motion states that:
Plaintiff [Doe] claims that he was transferred to a different facility and thus never received Defendant's motion for summary judgment. As a result, he argues, he never had the opportunity to respond to it . . . . Plaintiff has offered no reason for his fifteen-month delay in filing the instant Motion."
Order at 1-2 (italics added). The court also reasoned that in light of the "sworn testimony indicating that a search had not revealed any sought document," Doe had failed to demonstrate the "exceptional circumstances" required for relief under Rule 60 (b).*fn10
Thereafter, Doe filed a motion, pursuant to Super. Ct. Civ. R. 59 (e), to alter or amend the ruling that denied his Rule 60 (b) motion to vacate the summary judgment order.*fn11 Doe explained in his Rule 59 (e) motion and accompanying affidavit that he had informed both the court and counsel for the District of his new address in Tennessee, but did not receive notice of either the motion for summary judgment or the entry of summary judgment against him; that as a result he was denied due process; and that the trial court had therefore erred in denying his Rule 60 (b) motion for relief from the summary judgment ruling. He contended that pursuant to Rule 60 (b)(4), the trial court should have vacated the entry of summary judgment as void. He explained that he filed the Rule 60 (b) motion as soon as he learned of the court's entry of judgment against him, and that he had learned of it only after "ask[ing] the court's clerk of the status of the litigation." He stated that "he [had] waited over a year before he inquired about the status of the litigation [because] he was under the impression that the court calendar was crowded and that on [sic] due time the court was going to act on his case." He also asserted that the court should have found that his sworn complaint raised a material factual dispute sufficient to defeat summary judgment, and claimed that "whatever database  Farmer claim[ed] he/she reviewed, obviously is not the correct one, or [Farmer] is lying to this court . . . ."
On August 8, 2006, the trial court denied Doe's motion on the ground that it did "not raise any issues that were not considered in the Court's January 12, 2006 Order [denying the Rule 60 (b) motion]." Doe timely filed this appeal.
Doe seeks review of (1) the trial court order denying his Rule 59 (e) motion by which he had asked the court to reconsider its (2) denial of his Rule 60 (b) motion, in which he had asked the court to vacate its (3) summary judgment ruling. We review a trial court's denial of a Rule 59 (e) motion to amend for an abuse of discretion. See Nelson v. Allstate Ins. Co., 753 A.2d 1001, 1005 (D.C. 2000). But, because the issue of whether the court abused its discretion vel non in denying Doe's Rule 59 (e) motion hinges on the propriety of its denial of appellant's Rule 60 (b) motion, we must turn first to a review of the court's ruling on Doe's motion for relief under Rule 60 (b).*fn12
In most instances, "[t]he decision whether to relieve a party from a final judgment pursuant to Rule 60 (b) is committed . . . to the sound discretion of the trial court, and appellate review is deferential and limited." Jones v. Hersh, 845 A.2d 541, 544-45 (D.C. 2004). However, "the trial court has no discretion when relief is sought pursuant to subdivision (4) of Rule 60 (b) on the ground that the judgment is void." Id. Whether a judgment is void is a question of law.*fn13 Id. at 545. Thus, appellate review of the court's decision on a Rule 60 (b)(4) motion -- which is how Doe styled his motion -- is not deferential, but de novo. Id. If a judgment is void, it must be vacated. Id.
A judgment is void for purposes of Rule 60 (b)(4) if the judgment was entered in violation of due process. See Hudson v. Shapiro, 917 A.2d 77, 82 (D.C. 2007) ("if a court proceeds to hear . . . a habeas corpus petition and finds facts without notice to the prisoner sufficient to permit any meaningful participation by the prisoner, the resulting judgment on the petition may be void and may be set aside under Rule 60 (b)(4)") (quoting JAMES W. MOORE'S FEDERAL PRACTICE § 60.44 (3d ed. 2006)). Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Robinson v. Kerwin, 454 A.2d 1302, 1307 (D.C. 1982) (quotation marks and citation omitted). Accordingly, "violations of the Superior Court Rules which provide for notice and an opportunity to be heard have the effect of denying a litigant due process of law." Evans v. Evans, 441 A.2d 979, 980 (D.C. 1982) (citation omitted).
Doe argued in his Rule 59 (e) motion that the trial court erred in denying his Rule 60 (b) motion because Superior Court Rules 5 and 77 were violated, in derogation of his rights to notice and the opportunity to be heard. Super. Ct. Civ. R. 5 (a) states that "every written motion other than one which may be heard ex parte . . . shall be served upon each of the parties." Service under Rule 5 (a) may be accomplished by "[m]ailing a copy to the last known address of the person served." Super. Ct. Civ. R. 5 (b). "Without notice of an impending grant of summary judgment, a defendant has no opportunity to be heard . . . [and so is] denied due process of law. . . ." New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 (5th Cir. 1996).
Superior Court Rule 77 demands that "[i]mmediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 (b) upon each party who is not in default for failure to appear, and shall make a note in the docket of the service." Super. Ct. Civ. R 77 (d)(1). Generally, a party may not rely upon a failure to receive notice of the entry of final judgment as a basis for relief from that judgment under Super. Ct. Civ. R. 60 (b). Id.; see also District of Columbia v. Watkins, 684 A.2d 395, 398 (D.C. 1996). However, as we observed in Watkins, "[w]hile the actual mailing of the notice is the critical element in the running of the time for notice of appeal, [citation omitted], the rule contemplates that the mail will be directed to the party's addresses where he or she is likely to receive it. Only when mail is properly directed can the act of mailing justify the presumption of receipt." Id. at 400 (citing Toomey v. District of Columbia, 315 A.2d 565, 567 (D.C. 1974)). We held consequently that where the court clerk sent notice of the trial court's ruling to the appellant's prior address instead of to appellant's "last known address" and mailed the ruling through the court's "in-house" circulation system instead of through the "ordinary mail," and where the appellant did not receive the order, there was "a sufficient showing of extraordinary circumstances to support the trial court's exercise of its discretion to grant [appellant's Rule 60 (b)] motion."*fn14 Id.
Here, because we do not have before us a copy of Doe's Rule 60 (b) motion, we cannot confirm directly that the motion advised the court that the court clerk did not mail the order to Doe's last known address or that Doe explained to the court that he filed his motion immediately after receiving notice of the order.*fn15 But, because the Superior Court jacket contains the envelope marked "return-to-sender" in which the court's summary judgment order had been mailed to Doe at his previous address, the record makes clear that Doe did not receive timely notice of the court's ruling.*fn16 We also can infer the content of Doe's Rule 60 (b) motion from the court's ruling on Doe's Rule 59 (e) motion, in which the court stated that Doe had not "raise[d] any issues that were not considered in the Court's January 12, 2006 Order [denying his Rule 60 (b) motion for relief]." In his brief and affidavit in support of his Rule 59 (e) motion -- and thus, presumably, in his Rule 60 (b) motion as well -- Doe explained that it was not until December 12, 2005, after receiving a response from the court to his inquiry about the status of his litigation, that he learned of the District's summary judgment motion and the court's summary judgment ruling, and that he filed his motion for relief from judgment on the same day. In light of the foregoing, the court should not have regarded Doe's Rule 60 (b) motion as unreasonably delayed.
Further, we can infer, from the trial court's brief reference in its ruling on the Rule 60 (b) motion, that Doe explained in his motion, at the very least, that he had been transferred to a different facility and that he never received the District's motion for summary judgment. With the explanation that he provided, his change-of-address notice that was docketed before the District's summary judgment motion was filed, and his prior rather than current address shown on the certificate of service attached to the District's motion, the court had before it evidence that at the very least called into question whether Doe had ever received a copy of the District's motion. In light of all these circumstances, we must conclude that the court erred in denying Doe's request for relief under Rule 60 (b)(4) without at least a hearing to inquire into matters such as whether the District failed to mail its summary judgment motion to Doe's last address of which the District had been apprised and whether the motion papers were returned as undeliverable.*fn17 And, as discussed infra, such a hearing would not be futile.
The District argues that Doe cannot be entitled to relief under Rule 60 (b) because he "did not make a meritorious challenge to the summary judgment." We disagree. Summary judgment is appropriate only when the record, including "pleadings . . . together with affidavits," indicates 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." Smith v. Washington Metro. Area Transit Auth., 631 A.2d 387, 390 (D.C. 1993); Super. Ct. Civ. R. 56 (c). In the face of Doe's detailed complaint and his identification of at least one responsive document that he believes to exist in MPD files, the District's summary judgment papers were not adequate to establish the lack of any material factual issue and to show that the District was entitled to the judgment that it obtained. In particular, the declaration that the District offered in support of its motion for summary judgment did not support its representation that it had "searched the relevant database and found nothing" or the court's conclusion that there was "nothing to compel."
As we have previously noted, many of the provisions of the District FOIA parallel those in the federal statute. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 521 (D.C. 1989). "Accordingly, except where the two acts differ, we have treated case law interpreting the federal FOIA as instructive authority with respect to our own Act." Id. at 521 n.5 (citing Grayson v. District of Columbia Dep't of Employment Servs., 516 A.2d 909, 911 n.2 (D.C. 1986)). The provisions that are relevant here are parallel, making that general approach appropriate here.*fn18 Case law in federal FOIA litigation establishes that "in order to obtain summary judgment 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. United States Dep't of the Army, 287 U.S. App. D.C. 126, 137, 920 F.2d 57, 68 (1990). It is not enough for an agency affidavit to state that "a search was initiated of the Department record system most likely to contain the information which had been requested . . . ." Id. Rather, the agency affidavit in support of a motion for summary judgment must show "with reasonable detail, that the search method . . . was reasonably calculated to uncover all relevant documents" and must "identify the terms searched or explain how the search was conducted." Id. "A reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched, is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the . . . court to determine if the search was adequate in order to grant summary judgment." Id.; see also Morley v. CIA, 378 U.S. App. D.C. 411, ___, 508 F.3d 1108, 1122 (2007) (holding that a declaration that "provide[d] no information about the search strategies" and failed to "'identify the terms searched or explain how the search was conducted'" was not an adequate basis for summary judgment). And, "[a]t the very least, [the agency is] required to explain in its affidavit that no other record system was likely to produce responsive documents." Oglesby, 287 U.S. App. D.C. at 137, 920 F.2d at 68.*fn19
The declaration of Detective Farmer that the District submitted in support of its summary judgment motion did not meet the foregoing standards. Although the District's brief asserted that a search was performed of the database that "is the only source of research that would contain information from 1989 or 1990" and the District's motion averred that a "search of all data bases containing information as to confidential sources was searched," Detective Farmer's affidavit supports neither of these allegations. Detective Farmer nowhere stated in his declaration that no data source other than the WACIIS database that he searched was likely to produce responsive documents, or that all files likely to contain responsive materials were searched. Nor did Detective Farmer describe the search terms that he used or his search method.
Yet, as described above, Doe's FOIA complaint specifically identified at least one document that Doe asserts must exist within MPD's files: the "contract" that Doe asserts he and Detective Villare signed. In the face of that allegation, and in the absence of a sworn statement by Detective Farmer or someone else within MPD to the effect that the declarant searched all files likely to contain responsive material and setting out details about the search method, it cannot be said that there is an absence of any material issue about whether the District has complied with its FOIA obligations. In short, in light of these deficiencies in the District's summary judgment papers, Doe has raised a challenge of sufficient merit to avoid summary judgment.
For all the foregoing reasons, the trial court erred in denying Doe's Rule 60 (b)(4) motion without at least a hearing and abused its discretion in denying his Rule 59 (e) motion. Accordingly, we reverse the rulings denying Doe's motions and remand to the trial court for further proceedings consistent with this opinion.