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Lea v. Executive Office for United States Attorneys

United States District Court, D. Columbia.

March 26, 2015

COREY LEA, Plaintiff,
v.
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS et al., Defendants

COREY LEA, Plaintiff, Pro se, Alvaton, KY.

For EXECUTIVE OFFICE OF UNITED STATES ATTORNEYS, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

Page 86

MEMORANDUM OPINION

Reggie B. Walton, United States District Judge.

The plaintiff, proceeding pro se, brought this action under the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2012), to compel the release of records from the Executive Office for United States Attorneys

Page 87

(" EOUSA" ) and the United States Department of Agriculture (" USDA" ). See Original Complaint (" Compl." ) at 1-2, 4. Currently pending is the Defendants' Motion for Summary Judgment, ECF No. 18. Despite the Court's advisements and warnings, the plaintiff has not opposed the defendants' motion. See Sept. 29, 2014 Order, ECF No. 24 (giving the plaintiff " a final opportunity to address the defendants' summary judgment motion" by November 24, 2014); Jun. 24, 2014 Order, ECF No. 19 (" Fox-Neal Order" ). For the reasons explained below, the Court will grant the defendants' motion in part, deny it in part, and dismiss the remainder of the case under Fed.R.Civ.P. 41(b).[1]

I. BACKGROUND

The defendants' undisputed material facts are as follows. The plaintiff submitted a request to the EOUSA in May 2010, for what was characterized as " Authorization Documents." Declaration of David Luczynski (" Luczynski Decl." ), ECF No. 18-2, ¶ ¶ 4-5. By letter dated August 27, 2010, the EOUSA informed the plaintiff that it had processed 372 pages of records that were being withheld completely under FOIA exemptions 5 and 6.[2] Id. ¶ 8. The letter further informed the plaintiff that records originating with the USDA's Farm Service Agency that " may or may not be responsive to your request" were referred to that agency for processing and a direct response. Id.

In response to the plaintiff's appeal, the Office of Information Policy (" OIP" ) remanded the plaintiff's request to the EOUSA to conduct a search for additional records in the United States Attorney's Office for the Western District of Kentucky. See id. ¶ 9. By letter dated November 19, 2010, the EOUSA informed the plaintiff that the remanded request was a duplicate of the previously processed request. Id. ¶ 10. By letter dated May 31, 2011, the OIP informed the plaintiff, among other things, that the additional search had located no additional records and " noted that you have not appealed [the November 19, 2010] response." Luczynski Decl., Ex. I.

In May 2010, the USDA's Farm Service Agency received the plaintiff's request for documents pertaining to him. Declaration of Marcinda M. Kester (" Kester Decl." ), ECF No. 18-3, ¶ 3. " On or about May 18, 2010," the Farm Service Agency " issued a response . . . indicating [that] no responsive records were found[.]" Id. ¶ 5; see Compl. Attachment (" May 18, 2010 Letter" ). The letter informed the plaintiff about his right to appeal the decision to the Farm Service Agency Administrator within 45 days. See May 18, 2010 Letter at 2. The Farm Service Agency has no record of an administrative appeal from the plaintiff. Kester Decl. ¶ 6 (paragraph number supplied).

I. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, " [t]he court shall grant summary judgment 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). A court reviews an agency's response to a FOIA request de novo, 5 U.S.C. ยง 552(a) (4)(B), and " FOIA cases typically and appropriately are decided on motions for summary ...


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