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Walsh v. Federal Bureau of Investigation

United States District Court, District Circuit

July 3, 2013

RORY WALSH, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Pro se plaintiff Rory Walsh, on his own behalf and as the natural guardian of minor S.J.W., brought claims under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., against the Federal Bureau of Investigation ("FBI").[1] The FBI has filed a motion for summary judgment, while Walsh has filed, among other things, a motion for recusal. Because Walsh offers no evidence that recusal is warranted, his motion for recusal will be denied. Because there are no genuine issues in dispute and the FBI is entitled to judgment as a matter of law regarding Walsh's request for surveillance information and one investigating agent's identity, judgment will be entered for the FBI on those portions of Walsh's claim. However, because the FBI has not carried its burden to justify withholding the names of the agents in charge of the Harrisburg Resident Agency, that portion of the FBI's motion will be denied.

BACKGROUND

The background of this case is discussed more fully in Walsh v. F.B.I., 905 F.Supp.2d 80 (D.D.C. 2012). Briefly, Walsh is a former Marine Corps officer who believes that a former Marine Commandant has been harassing him and got the FBI to make warrantless entries into his Pennsylvania home between 2005 and 2009. Walsh's complaint asserts that Walsh sent a FOIA request to the FBI seeking records related to his alleged harassment, and that the FBI did not adequately respond to his request. Compl. ¶¶ 22, 25, 27, 58.

In September 2011, the FBI received a letter from a Congressman asking about the status of an attached letter referred to as Walsh's "unanswered FOIA request" which sought "the name and FBI agent number of the Special Agent in Charge of the Harrisburg office, " from November 2006 to the present date. Walsh, 905 F.Supp.2d at 86. The FBI Chief of the Record/Information Dissemination Section ("RIDS"), David Hardy, said in a declaration filed in this case that after receiving Walsh's "unanswered FOIA request, " the FBI sent a letter to Walsh on September 14, 2011 stating "that the Harrisburg Resident Agency falls under the Philadelphia Field Office" and providing Walsh with the office contact information and the name of the Special Agent in Charge of the Philadelphia office, George C. Venizelos. FBI Mot. to Dis. or for Summ. J. [16], Ex. 2 ("First Hardy Decl."), ¶ 7. Walsh stated in his own declaration that he responded by sending to the FBI's Office of Information Policy ("OIP") an "appeal" letter dated September 27, 2011, requesting "[t]he name of each FBI agent in charge of the Harrisburg Resident Agency from May 2005 to the present date, " the name of an agent who interviewed Walsh in April 2011, and three more requests related to information about the alleged FBI surveillance and questioning of Walsh. Walsh, 905 F.Supp.2d at 86.

The FBI interpreted the three new requests as requests for "any and all information on Rory M. Walsh." According to Hardy, the FBI responded to these three new requests by sending to Walsh a letter dated October 12, 2011, stating that "[Walsh's] request did not contain sufficient information to conduct an adequate search of the Central Records System" and seeking additional information from Walsh to assist the FBI in locating the information Walsh sought, including Walsh's full name, address, date of birth, and telephone number.... Hardy states that the letter advised Walsh that the FBI would close his request if it did not receive a response within 30 days, and that he could appeal the FBI's denials within 60 days.... Hardy claims that the FBI has no record of receiving a response from Walsh... [but] Walsh disputes that the FBI ever sent such a letter.

Id. (internal citations omitted). The FBI sent Walsh a letter on December 9, 2011, telling him that the names of the agents in charge of the Harrisburg Resident Agency would be withheld under FOIA Exemptions (b)(6) and (b)(7)(C), and telling him that he had 60 days to appeal. Id . Walsh responded that he filed an administrative appeal, but the FBI's OIP was not able to find such an appeal in its system. Id. at 86-87.

The FBI initially filed a motion to dismiss or for summary judgment based on Walsh's purported failure to exhaust his administrative remedies. A November 2012 opinion denied that motion, stating in relevant part:

The FBI argues... that Walsh failed to properly file an administrative appeal of the FBI's responses to his FOIA request and to exhaust his available administrative remedies. However, the FBI does not provide factual detail to show that its searches for Walsh's responses were reasonably calculated to find his response, nor does the FBI provide any evidence, such as a return receipt, that would resolve the factual dispute about whether it mailed Walsh the October 12 letter. Therefore, the FBI's motion for summary judgment will be denied.

Walsh, 905 F.Supp.2d at 87. The memorandum opinion also denied motions filed by Walsh for partial summary judgment against the FBI, for expeditious treatment of his motion for partial summary judgment against the FBI, for a writ of mandamus, and for default judgment against all defendants.

The FBI has filed a new summary judgment motion, claiming that Walsh's request for surveillance information is now moot because the FBI has conducted a more rigorous search, and has found nothing responsive to Walsh's request for any documents pertaining to warrants or surveillance, and that the names of FBI agents can be withheld under Exemptions 6 and 7(C) of the FOIA. Def.'s Mem. of Law in Supp. of Mot. to Dismiss or for Summ. J. [31] ("Def.'s Second Mem.") at 1, 6-8. Walsh opposes the FBI's motion, arguing that the FBI's search was not sufficient and that Exemptions 6 and 7(C) do not justify withholding the names of the agents. Pl.'s Opp'n at 9-10, 12-16. Walsh also has filed, among other things, a motion to recuse the undersigned, asserting that the November 2012 opinion demonstrated bias.[2]

DISCUSSION

I. RECUSAL

Walsh has moved to recuse the undersigned under 28 U.S.C. § 455(a), and 28 U.S.C. § 144. According to Walsh, recusal is warranted because the November 2012 opinion "brought forward [the undersigned's] open animosity and mishandling of [a related case filed by Walsh]... and [the undersigned] has denied five (5) un-opposed motions, has made no effort to uphold the law, and openly provided advise [sic] to the FBI for their next motion which is not only brazen ...


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