United States District Court, D. Columbia.
HARVEY, Plaintiff, Pro se, Loretto, PA.
ERIC H. HOLDER, JR., FEDERAL BUREAU OF PRISONS, OFFICE OF
INTERNAL AFFAIRS, DEPARTMENT OF JUSTICE, Defendants: Claire
M. Whitaker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE,
D. MOSS, United States District Judge.
proceeding pro se, brings this action under the
Freedom of Information Act (" FOIA" ), 5 U.S.C.
§ § 552, et. seq., and the Administrative
Procedure Act (" APA" ), 5 U.S.C. § §
500, et. seq., to compel Defendants Attorney General
Loretta Lynch, the Federal Bureau of Prisons, and the
Department of Justice's Office of Internal
Affairs to process and release records in
response to his FOIA to the Bureau of Prisons ("
BOP" ), and to do so without delay. As is typical in
FOIA cases, the parties have cross-moved for summary
judgment. What has followed is less typical. At the time
Plaintiff filed this action, Defendants had not yet produced
any records responsive to Plaintiff's FOIA request.
Shortly after Plaintiff initiated suit, however, Defendants
processed the request and produced responsive records.
Significantly, although persisting with the suit, Plaintiff
does not contend that Defendants' production was
incomplete or that Defendants otherwise failed to comply with
their FOIA obligation to turn over information. Instead, he
argues that Defendants violated FOIA and the governing
regulations by failing to respond to his request in a timely
manner, and he asks that the Court hold BOP's prior
inaction " unlawful" under the APA. Dkt. 14 at 12.
Although not raised in his opening brief, Plaintiff also
argues in reply (Dkt. 19) and in an " addendum"
(Dkt. 20) filed shortly after his reply that he is entitled
to his litigation costs as a prevailing party under FOIA, 5
U.S.C. § 552(a)(4)(E)(i).
this backdrop, the Court concludes that Plaintiff's FOIA
and APA claims are moot and that, to the extent Plaintiff
contends that he is entitled to costs, he must file a
separate motion seeking that relief and providing Defendants
with an opportunity to respond. Accordingly, Defendants'
Motion for Summary judgment (Dkt. 12) is GRANTED,
Plaintiff's Cross-Motion for Summary Judgment (Dkt. 14)
is DENIED, and the complaint (Dkt. 1) is DISMISSED as moot.
Plaintiff may file a motion seeking costs under FOIA within
30 days of this Order.
Edward Harvey, is an inmate at the Federal Correctional
Institution Loretto, located in Loretto, Pennsylvania. Dkt.
14 at 8. While incarcerated, Plaintiff filed a complaint with
the warden alleging that a staff member committed misconduct
by preventing Plaintiff from holding his granddaughter during
a visit on November 2, 2013. Dkt. 12-3 at 25. Dkt. 1 at 11,
Dkt. 12-3 at 22-23. Plaintiff's mother also filed a
complaint alleging that several officers inadequately
supervised the " Visitor's Only" bathroom
during that same visit. Dkt. 12-3 at 26.
that the warden did not properly follow through on his
complaint, Plaintiff filed a FOIA request with BOP requesting
" a certified true copy of the Staff Misconduct
Investigation Report to which [Plaintiff was a party]."
Dkt. 1 ¶ 10, Dkt. 12-3 at 5. That request was filed on
April 14, 2014. Id. Ten days later, BOP acknowledged
receiving the request and informed Plaintiff that it has
adopted a " first-in/first-out practice of processing
all requests." Dkt. 12-3 at 9. BOP noted that "
[w]hile most requests can be processed within 20 working
days, exceptions may exist." Id.
21, 2014-36 days after filing his FOIA request--Plaintiff
appealed BOP's failure to timely respond to the
Department of Justice's Office of Information Policy
(" OIP" ). Dkt. 1 ¶ 12; see 5 U.S.C.
552(a)(6)(A)(i). OIP informed Plaintiff that Department of
Justice regulations allow for administrative appeals to OIP
only after an adverse determination on a FOIA request and
that, because BOP had not yet made any determination on
Plaintiff's FOIA request, OIP could not consider the
appeal. Dkt. 1 ¶ 8, Dkt. 1 at 17; see 5 U.S.C.
commenced this action on July 21, 2014. Dkt. 1. The complaint
alleges: (1) that Defendants' " failure to make a
determination to grant or deny" his request for records
violated FOIA and Department of Justice regulations,
id. ¶ 18; (2) that " Defendants'
failure to timely make a determination to grant or deny
plaintiff's request constitutes agency action unlawfully
withheld and unreasonably delayed," id. ¶
21, is " arbitrary, capricious, an abuse of
discretion," and otherwise violates the APA,
id. ¶ 22; (3) that Defendants' "
failure to timely grant or deny plaintiffs' FOIA
appeal" violated ...