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Leah Nicholls, Plaintiff v. United States Office of Personnel Management

May 29, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Federal law prohibits individuals who have not registered for the Selective Service from holding appointments in federal agencies. See 5 U.S.C. § 3328. Plaintiff Leah Nicholls is seeking records that concern the Government's treatment of people under this statute. To that end, she submitted requests under the Freedom of Information Act to the Office of Personnel Management. When OPM ultimately responded that it possessed no responsive documents, Plaintiff initiated this suit. Both parties have now moved for summary judgment. Because OPM did not conduct a sufficiently thorough search, the Court will deny its Motion. In addition, the Court will grant Plaintiff's Motion in part and require OPM to release documents relating to reconsiderations of certain decisions under § 3328.


On April 22, 2011, Plaintiff submitted a FOIA request to OPM. See Pl. Mot. & Opp., Exh. 1 (Declaration of Leah M. Nicholls), ¶ 2. "The request sought all records in OPM's possession or control created since January 20, 2001, that fell into three categories":

1. "[R]ecords that identify the number, approximate number, or categories of employees terminated from federal agency employment under 5 U.S.C. § 3328";

2. "[R]ecords that identify the number, approximate number, or categories of individuals who have been denied employment with federal agencies or have had offers of employment rescinded under 5 U.S.C. § 3328"; and

3. "[R]ecords relating to any formal or informal appeals made either to any individual agency or to OPM regarding the termination, denial of employment, or withdrawal of an employment offer pursuant to 5 U.S.C. § 3328."

Id., ¶ 3.

Three days later, the request was forwarded to Gary Lukowski, who is the Manager of the Workforce Information Group and the person who supervises the processing of FOIA requests involving the government-wide database used for the federal civilian workforce. See Govt. Mot., Attach. 2 (Declaration of Gary A. Lukowski), ¶¶ 2, 5. This database is called the Enterprise Human Resources Integration-Statistical Data Mart (EHRI-SDM), and it "is operated and maintained by OPM and is the government's official source of government-wide workforce information." Id., ¶ 5. The EHRI-SDM "has approximately 100 data elements," including details on "resignations[] and other terminations." Id. Separations from employment are broken down into categories such as "mandatory retirements, disability retirements, voluntary retirements, resignations in lieu of involuntary actions, resignations, removals, terminations during probationary/trial periods, and simple terminations." Id., ¶ 6. Lukowski, after "review[ing] the list of available nature of action codes pertaining to separations . . . [,] determined that no nature of action code exists in the EHRI-SDM that would indicate an individual was separated from an agency due to his failure to register with the Selective Service . . . [or was] denied employment with a federal agency or had an offer of employment rescinded [for that reason]." Id.

Lukowski, "[o]ut of an abundance of caution," also forwarded the request to Mary Carter, "OPM's personnel processing subject matter expert," who confirmed that "there was no way to identify the individuals requested." Id., ¶ 7. OPM contends it informed Plaintiff between April 27 and May 23, 2011, that "OPM did not maintain the information she was seeking." Govt. Mot., Attach. 1 (Declaration of Ryan Witt), ¶ 7. Plaintiff, on the contrary, believes she received no such message. Nicholls Decl., ¶ 5. Both sides nevertheless agree that on May 23 Plaintiff called OPM's FOIA Coordinator, Ryan Witt, to follow up, and Witt agreed to look again at her request. Id., ¶ 5; Witt Decl., ¶ 8. Witt met at some point that summer with Lukowski and again verified that "OPM did not have the requested records," which information he relayed to Plaintiff on August 30. Id., ¶¶ 8, 11-12; Nicholls Decl., ¶ 8. Plaintiff relates the substance of further discussions with OPM, but because those conversations may have been part of settlement discussions and, in any event, are not necessary to the resolution of this Motion, the Court will not rely upon them.

Plaintiff then filed this suit on September 13, and both parties now seek summary judgment.

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

"[A] material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" on an element of the claim. Liberty Lobby, Inc., 477 U.S. at 248. Factual assertions in the moving party's affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, ...

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