United States District Court, D. Columbia.
MARTIN H. GARVEY, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, Defendant
Decided: August 21, 2014.
For MARTIN H. GARVEY, Plaintiff: David Milton Dorsen, LEAD ATTORNEY, SEDGWICK LLP, Washington, DC.
For U.S. DEPARTMENT OF JUSTICE, Defendant: Shannon L. Fagan, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Civil Division, Washington, DC.
MEMORANDUM OPINION [Dkt. #4]
RICHARD L. LEON, United States District Judge.
Plaintiff Martin H. Garvey brings this action against the Department of Justice for failure to disclose information pursuant to the Freedom of Information Act (" FOIA" ). See generally Am. Compl. [Dkt. #3]. Plaintiff seeks material regarding an ethics opinion requested by and provided for a prosecutor in plaintiff's prior criminal case. Id. Plaintiff moves for summary judgment ordering that the defendant is required to produce the requested records. Pl.'s Mot. and Mem. in Support of Mot. for Summ. J. (" Pl.'s Mot." ) [Dkt. #4]. After due consideration of the parties' pleadings, the relevant law, and the entire record herein, plaintiff's motion is DENIED.
In 2008, Mr. Garvey and four others were indicted in the Southern District of Florida. Pl.'s Mot. at 1. Garvey and the co-defendant that was tried alongside him were acquitted of all charges. Id. However, another co-defendant, Laurence Issacson, was tried in a separate trial and convicted. Id. at 1-2. Mr. Garvey later learned that the prosecuting attorney. Assistant United States Attorney Harold Schimkat, had a possible conflict of interest based on his wife's employment at the same law firm as the attorney who represented a major government witness in both trials: co-defendant Milton Barbarosh. Id. at 2. In response to a motion to vacate the convicted co-defendant's sentence. AUSA Schimkat represented that there was no conflict of interest and that he had, " [a]s a precautionary measure." sought and received a formal opinion fro the General Counsel's Office of the Executive Office for United States Attorneys (" EOUSA" ) in Washington regarding his wife's employment. Govt.'s Resp. to Laurence Issacson's Mot. for New Trial Pursuant to Rule 33 at 2, United States v. Issacson, No. 08-CR-20071 (S.D. Fla. July 23, 2012), ECF No. 1223 [Dkt. #4-1]. The final opinion concluded there was no conflict of interest. Id. at 2-3.
In September 2013, Mr. Garvey submitted a FOIA request to the Department of Justice's Executive Office for United States Attorneys seeking " 1) the formal ethics opinion request of AUSA Schimkat to the General Counsel at the Executive Office for United States Attorneys, and 2) the actual formal ethics opinion report issued by the General Counsel at the Executive Office for United States Attorneys regarding AUSA Schimkat's wife's employment at Carlton Fields and any potential conflicts of interest that might be cause for AUSA Schimkat's recusal in [Mr. Garvey's criminal case]."  Decl. of Kathleen
Brandon (" Brandon Decl." ), Exh. D [Dkt. #15-1].
The EOUSA responded in March 2014, indicating that its searches had identified six pages of documents in U.S. Attorneys' Office files that may be responsive to Mr. Garvey's request. Brandon Decl., Exh. F. The government describes the documents as follows:
1) A one-page email chain in which AUSA Schimkat sent a Memorandum to the office's Ethics Advisor, who forwarded the email and Memorandum to the General Counsel's Office in the EOUSA, along with the Advisor's ...