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Timothy Demitri Brown, Pro Se v. Federal Bureau of Investigation

November 9, 2011

TIMOTHY DEMITRI BROWN, PRO SE, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

MEMORANDUM OPINION

Defendant U.S. Department of Justice, Tax Division ("DOJ", "Tax Division") has filed a Motion to dismiss or in the alternative for summary judgment, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56(a). Upon consideration of defendant's Motion [49], plaintiff's opposition [56], defendant's reply [59], the applicable law, and the entire record herein, the Court will grant defendant's motion for the reasons set forth below.

I.BACKGROUND

On October 15, 2010, the Tax Division received plaintiff's Freedom of Information Act ("FOIA") request dated October 4, 2010, and assigned it tracking number 10339. Banerjee Decl. [ECF No. 49, Ex.1] at ¶¶ 12--13. In a letter dated October 22, 2010, the Tax Division informed plaintiff that it could not locate records responsive to plaintiff's request but informed plaintiff that he could complete a FOIA Clarification Sheet and submit it with another FOIA request. Id. at ¶ 15. On November 8, 2010, the Tax Division received a second request from plaintiff along with a FOIA Clarification Sheet and assigned it tracking number 10347. Id. at ¶ 16. Plaintiff's second request clarified that he sought all records from the Western District of Louisiana or Houston, Texas involving Internal Revenue Service Special Agent Doris Scholarman, who had allegedly investigated the plaintiff for money laundering or drug conspiracy. See id. at ¶ 21.

After receiving plaintiff's second FOIA request and FOIA Clarification Sheet, the Tax Division conducted six searches for responsive records using its database, TaxDoc. Id. at ¶ 28. TaxDoc is the Tax Division's primary case management system, which maintains records pertaining to individuals or entities and includes civil and criminal matters referred to the Division. Id. at ¶ 27. The Tax Division searched both the criminal and civil modules in TaxDoc by first entering the search term "Timothy Brown" without using plaintiff's Social Security number. Id. at ¶ 28. The Division then searched the criminal and civil modules of TaxDoc using the search term "Timothy Brown" along with plaintiff's Social Security number. Id. The Tax Division then searched each criminal and civil module by applying the TaxDoc's Soundex feature, which retrieves all names that sound like the name entered. Id.

When plaintiff's name was entered with his Social Security number, TaxDoc did not identify any criminal or civil cases. Id. at ¶ 29. The Tax Division did not conduct a search using the third party IRS special agent's name because pursuant to the privacy Act, 5 U.S.C. § 552a(b), the Division maintains and therefore searches its records by the identity of the individual requester, not by third-party names. See generally Burke v. U.S. Dep't of Justice, 1999 WL 1032814 (D.D.C. Sept. 30, 1999).

The Tax Division did find two civil cases in its system referring to a "Timothy Brown" that appeared potentially relevant: DJ No. 5-33-4368, a case from the Western District of Louisiana, and DJ No. 5-74-12490, a case from the Southern District of Texas. Banerjee Decl. at ¶ 29. The Tax Division ordered the records from its Records Management Unit. Id. at ¶ 30. On November 10, 2010, the Tax Division received the case file for DJ No. 5-33-4368, and upon reviewing that file, found that it did not contain records responsive to plaintiff's FOIA request. Id. at ¶¶ 32, 35.

The Tax Division could not locate the case file for DJ No. 5-74-12490 at that time, but determined from the information on the TaxDoc printouts that it did not contain records responsive to plaintiff's FOIA request. Id. at ¶ 38. The TaxDoc printout indicated that the file pertained to a civil case, so the Tax Division determined that the file was unlikely to contain documents responsive to plaintiff's request regarding a criminal investigation of plaintiff for money laundering or drug conspiracy. Id. at ¶¶ 39--40; see id., Ex. E. The TaxDoc printout also showed that this case was opened, closed, and transferred to the U.S. Attorney's Office on the same day, a fact which, based on the agency's experience, indicated that it was unlikely that the Tax Division had performed any work on the matter. Id. at ¶ 41; see id., Ex. E. When the Tax Division later received the case file for DJ No. 5-74-12490, it confirmed that the file contained records of a Chapter 13 Bankruptcy filed in 1996 by a Timothy Brown-with no middle initial- and another individual, but contained no criminal records. See Willis Decl. at ¶ 17. After conducting this search, the Tax Division informed the plaintiff that it could not locate records responsive to his FOIA request. Banerjee Decl. at ¶ 42.

On November 30, 2010, plaintiff filed an Amended Complaint naming the Tax Division as a defendant. See ECF No. 21, Ex. 1. On December 22, 2010, plaintiff appealed the Tax Division's response to his FOIA request. Banerjee Decl. at ¶ 46. On February 2, 2011, the DOJ's Office of Information Policy affirmed the Tax Division's response. Id. at ¶ 47.

The Tax Division maintains that it has no records that are responsive to plaintiff's FOIA request and has therefore filed this dispositive motion in lieu of preparing a Vaughn index pursuant to this Court's Order of June 24, 2011. See ECF No. 41.

II.LEGAL STANDARDS

1.Failure to State a Claim

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is appropriate when a complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To overcome this hurdle, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint," Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff "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). However, the Court may not "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In other ...


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