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Riccardi v. United States Department of Justice

United States District Court, District of Columbia

March 24, 2014




Proceeding pro se, plaintiff James Riccardi has filed this action to challenge the adequacy of the search for records that the Executive Office for United States Attorneys ("EOUSA") conducted in response to a Freedom of Information Act ("FOIA") request that Riccardi submitted. (Compl., ECF No. 1.)[1] In addition to claiming that "Defendants have wrongfully withheld the requested records, " (Compl. ¶ 27), Riccardi's complaint also faults the EOUSA for denying his plea for expedited processing of his FOIA request. (Compl. ¶¶ 29-32.) Having twice released responsive records to Riccardi, the Department of Justice, of which EOUSA is a component, has filed a motion that seeks (1) entry of summary judgment in Defendant's favor under Federal Rule of Civil Procedure 56 on the grounds that there is no genuine issue of material fact regarding the adequacy of its search, and (2) dismissal of Riccardi's challenge to the agency's denial of expedited processing, under Rule 12(b)(1), on the grounds that this Court lacks jurisdiction to consider that claim. (Defs.' Renewed Mot. for Summ. J. & Mot. to Dismiss ("Defs.' Mot."), ECF No. 18.) Riccardi has opposed Defendants' combined motion for summary judgment/motion to dismiss ( see Pl.'s Resp. in Opp'n to Defs.' Renewed Mot. for Summ. J. & Mot. to Dismiss ("Pl.'s Opp'n"), ECF No. 22), and Defendants have replied ( see Defs.' Combined Opp'n to Pl.'s Mot. to Conduct Disc. & Reply to Pl.'s Opp'n to Defs.' Renewed Mot. for Summ. J. ("Defs.' Reply"), ECF No. 30).[2] Upon consideration of the parties' submissions and the entire record, the Court GRANTS Defendants' motion in both respects.


Riccardi is currently serving a prison sentence of 262 months that the United States District Court for the District of Kansas imposed in 2003 following his conviction of possession of child pornography and related charges. See United States v. Riccardi, 405 F.3d 852, 856 (10th Cir. 2005). By letter of February 2, 2010, Riccardi submitted a FOIA request to EOUSA seeking "any and all documents pertaining to [him] in the possession of the Office of the United States Attorney in Kansas City, Kansas." (Decl. of David Luczynski ("Luczynski Decl."), ECF No.18-2, Ex. A.) By letter of August 20, 2010, EOUSA informed Riccardi that it had located approximately 7, 500 responsive pages and that the estimated processing fee would be $740.00, pursuant to 28 C.F.R. § 16.11(i)(2). ( See id. ¶ 8 & Ex. E.)[3] The letter also informed Riccardi that he was required to pay this fee before processing could continue; however, the letter also noted that the fee could be reduced if, among other things, Riccardi "reformulate[d his] request" to limit the documents to "a specific category or categories." ( Id., Ex. E.)

Riccardi narrowed his FOIA request by letter of August 25, 2010. The revised request sought "[a]ny and all documents pertaining to plea negotiations, plea offers, plea deals, [and] plea agreements in [his criminal case], " including "all correspondence and communication between the [U.S. Attorney's Office] in Kansas City, Kansas, and any attorneys, the District Court [or] any other agency[, ]" as well as "any inter-office and inter-agency communication (notes, memoranda, etc.)." ( Id., Ex. F.)

Following a search, EOUSA determined that "[t]here were no records created by [the office of the United States Attorney] pertaining to any plea negotiations, offers, or agreements." (Decl. of Merry L. Baxter ("Baxter Decl."), ECF No. 18-3, ¶ 3.) Indeed, the only responsive records in the office files were documents that had previously been filed in court in conjunction with habeas proceedings that Riccardi had brought under 28 U.S.C. § 2255. ( See id. ¶ 3; see also Decl. of Leon Patton ("Patton Decl."), ECF No. 18-5, ¶ 3 (explaining that Riccardi had filed a habeas action in which he alleged that his attorneys had been ineffective in not persuading him to enter into a plea agreement).) These documents included "a response filed by [the AUSA] in the 2255 proceeding"; an affidavit from one of Riccardi's attorneys that "discussed verbal plea negotiations"; "a memo to the file by [Riccardi's] other attorney which contemporaneously memorialized plea discussions with [Riccardi]"; and "a handwritten post-sentencing letter from [Riccardi] to one of his attorneys in which [Riccardi] expressed regret for not working out a plea agreement.'" (Patton Decl. ¶ 4.) All of the responsive documents were forwarded to Riccardi in response to the FOIA request. (Baxter Decl. ¶ 3.)

By letter of January 31, 2012, EOUSA then informed Riccardi that it had decided to make a "full release" with respect to his request, explaining that "[a]ll of the records you seek are being made available to you." (Luczynski Decl., Ex. K.) This letter also informed Riccardi that the agency's decision in this regard was a final action of the agency, and that he had the right to appeal the decision to the Office of Information Policy ("OIP"). ( Id. ) In November of 2012, following an unsuccessful appeal to OIP ( see id. ¶¶ 15-18), Riccardi filed this civil action.

Riccardi's complaint contains two counts: violation of FOIA (Count I), and violation of the APA (Count II). (Compl. at 7-8.) The complaint alleges that Riccardi's FOIA request was "simple and straightforward" insofar as it sought "from the Government what they (the Government) offered as a plea deal in plaintiff's criminal case" ( id. ¶ 9), but that Defendants had omitted from their production any "documents from the U.S. Attorney's Office explaining what the government offered as a plea deal as requested" ( id. ¶ 15). The complaint also maintains that EOUSA had wrongfully refused to grant Riccardi's request for expedited processing with respect to the documents he sought. ( Id. ¶¶ 24-26.)

In response to the filing of Riccardi's complaint, the U.S. Attorney's Office in Kansas revisited the FOIA search request-interpreting the request "very lenient[ly]"- and conducted another search of its "computer files for anything pertaining to plea offers, negotiations, or agreements, " and of its "paper files concerning [Riccardi that were] retriev[ed] from the National Archives and Records Administration facility in Lenexa, Kansas." (Patton Decl. ¶¶ 6-7.) This search encompassed the files of Assistant United States Attorney ("AUSA") Kim Berger (now Martin), who had prosecuted Riccardi; the closed files of Riccardi's prosecution, appeal, and collateral proceedings; and the case-management database known as LIONS. ( Id. ) On July 29, 2013, EOUSA released in their entirety "25 court-filed documents compris[ing] a total of 343 pages" and informed Riccardi about his obligation to pay $24.30 for the duplication costs of the pages exceeding the first 100 free pages, and his right to appeal the determination to OIP. (Suppl. Luczynski Decl., ECF No. 18-4, ¶ 4 & Ex. A.)

Defendants then filed the instant motion for summary judgment/motion to dismiss, arguing that its obligation to search for, and to produce, responsive documents had been fulfilled and that the Court lacked jurisdiction over Riccardi's expedited processing claim in light of the completed production. (Defs.' Mot. at 3-4.) Riccardi has opposed the dismissal of his expedited processing claim and/or having summary judgment issued in Defendants' favor on the issue of the adequacy of the search, on the grounds that Defendants have neither provided a complete response to its FOIA request, nor conducted an adequate search. (Pl.'s Opp'n at 4-6.)


There are two aspects to the pending motion-Defendants' request for entry of summary judgment in the absence of a genuine issue of material fact regarding the adequacy of the search, and Defendants' argument that the Court lacks jurisdiction over Riccardi's claim regarding expedited review-each of which is governed by a different legal standard.

Under Federal Rule of Civil Procedure 56, summary judgment is warranted "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). The moving party must support the assertion that no facts are in dispute by "citing to particular parts of materials in the record, including... affidavits or declarations." Fed.R.Civ.P. 56(c)(1)(A).

In a FOIA case, where the adequacy of an agency's search is questioned, the Court may grant summary judgment based on information provided in "[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." Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999). Such agency affidavits attesting to a reasonable search "are afforded a presumption of good faith, " and "can be rebutted only with evidence that the agency's search was not made in good faith.'" Defenders of Wildlife v. U.S. Dep't of Interior, 314 F.Supp.2d 1, 8 (D.D.C. 2004) (quoting Trans. Union LLC v. FTC, 141 F.Supp.2d 62, 69 (D.D.C. 2001)). In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998). The Court must also be mindful that an agency is required to produce only those records in its custody and control at the time of the FOIA request. McGehee v. CIA, 697 F.2d ...

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