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Behrens v. United States Attorney

United States District Court, District of Columbia

April 22, 2016

Bryan C. Behrens, Plaintiff,
United States Attorney, District of Nebraska, Defendant.



In this case brought under the Freedom of Information Act, before the court is Defendant’s Supplemental Motion for Summary Judgment. ECF No. 22. For the reasons discussed below, Defendant’s Motion is denied without prejudice.[1]


According to Plaintiff’s Complaint, “[o]n July 28, 2008 in the [United States District Court for the] District of Nebraska, Omaha, Chief Judge Laurie Smith Camp[] issued a judgment as to . . . Bryan S. Behrens in case 8:09CV13, ” which, among other things, “ordered that no judicial proceedings of any kind[, ] civil or criminal, may be commenced against Bryan S. Behrens without leave first being granted by the Court.” Complaint, ECF No. 1 [hereinafter Compl.], at 3 (page numbers designated by ECF); see generally id., Apps. 5-6 (respectively, Judgment as to Defendants and Appointment of Receiver, Sec. & Exch. Comm’n v. Behrens, No. 8:08CV13 (D. Neb. July 28, 2008), and Memorandum and Order, No. 8:08CV13 (D. Neb. Mar. 24, 2009)). Plaintiff contends that Judge Smith Camp’s order required the United States Attorney’s Office for the District of Nebraska (“USAO-Nebraska”) to obtain leave of court before it commenced criminal proceedings against him, see Compl. at 3-4, and that without leave of court, “there [sh]ould [have been] no indictment or judgment entered against [him], ” id. at 4. Apparently, without ever learning whether Judge Smith Camp authorized his prosecution, plaintiff pled guilty to one count of securities fraud, see Compl., App. 8 (Judgment in a Criminal Case, United States v. Behrens, No. 8:09CR129-001 (D. Neb. Nov. 3, 2010)) at 1, and served a prison sentence.

Plaintiff brought this action under the Freedom of Information Act (“FOIA”). See 5 U.S.C. § 552. His claim arises out of a request for information submitted to the Executive Office for United States Attorneys (“EOUSA”) in August 2013. In relevant part, the request reads:

I need a copy of the Court order that allowed the Nebraska U.S. Attorney[’s] Office to conduct criminal proceedings and issue the indictment. If the Nebraska U.S. Attorney[’s] office did not receive a Court order from Judge Smith Camp, granting leave to proceed as required, Behrens is asking for an admission that the U.S. Attorney[’s] office in Nebraska violated the orders issued by Judge Smith Camp when they issued the indictment and commenced legal proceedings against me.

Compl., App. 1 (Letter to Office of the Attorney General from plaintiff dated August 29, 2013) at 3; see id., App. 2 (Letter to FOIA/Privacy Staff, EOUSA, from plaintiff dated November 6, 2013). Attached to the request were copies of orders issued by Judge Smith Camp on July 28, 2008, and March 24, 2009, in Civil Case No. 8:08CV13. Plaintiff explained that he had “been unable to obtain the Court order . . . between July 28, 2008 [and] April 21, 2009, [the day before the indictment was issued, ] that gave the [USAO-Nebraska] leave of the court” to issue the indictment beginning the “criminal proceeding[s] that have resulted in [his] incarceration.” Id., App. 1 at 2.

By letter dated September 19, 2014, the EOUSA advised Plaintiff that the USAO-Nebraska had located no responsive records. Errata [ECF No. 20], Ex. C (Letter to Plaintiff from Susan B. Gerson, Assistant Director, Freedom of Information & Privacy Staff, EOUSA, dated Sept. 19, 2014 regarding Request No. FOIA-2014-00549). Plaintiff’s Complaint asserts that, because the EOUSA failed to “respond to [his] repeated . . . FOIA requests, it must now be deemed true by this Court that the United States Attorney[’]s Office never was granted leave . . . from Chief Judge Smith Camp[] [which would have] legally authoriz[ed] the commencement of the judicial proceedings that allowed a grand jury to be convened and [an] indictment issued and subsequent judgment entered against [him].” Compl. at 4.[2]

Defendant initially filed a motion for summary judgment on September 19, 2014, asserting that its search had not yielded any responsive records. Def.’s Mot. for Summ. J., ECF No. 14-1, at 5-8. The court denied that motion because Defendant did not submit an affidavit or declaration supporting that assertion. Mem. Op., ECF No. 21, at 3-4. In particular, Defendant did not explain, as required under D.C. Circuit precedent, “the procedures it used to identify the locations where the requested court order might be found and the method used to search those locations.” Id. at 3 (citing Weisberg v. DOJ, 627 F.2d 365 (D.C. Cir. 1980)). The court granted Defendant an opportunity to “file a renewed motion for summary judgment with a sufficiently detailed supporting affidavit or declaration.” Id. at 4. Defendant’s renewed motion is now before the court.


A. Legal Standard

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). The court grants summary judgment to an agency as the movant if the agency shows that there is no genuine dispute as to any material fact and if the agency is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “When, as here, an agency’s search is questioned, the agency is entitled to summary judgment upon a showing, through declarations that explain in reasonable detail and in a nonconclusory fashion the scope and method of the search, that it conducted a search likely to locate all responsive records.” Brestle v. Lappin, 950 F.Supp.2d 174, 179 (D.D.C. 2013) (citing Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)).

B. The EOUSA’s Search for Responsive Records

An agency “fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011) (citations and internal quotation marks omitted). To this end, it may submit affidavits or declarations to explain the method and scope of its search. See Perry, 684 F.2d at 126. Such affidavits or declarations are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). “[A] ...

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