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Behrens v. United States Attorney

United States District Court, District of Columbia

December 21, 2016

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

          MEMORANDUM OPINION

          AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant United States Attorney's Office for the District of Nebraska's Second Supplemental Motion for Summary Judgment. Def.'s Second Supp. Mot. for Summ. J., ECF No. 36. For the reasons discussed below, the Motion is granted.

         I. BACKGROUND

         Plaintiff Bryan C. Behrens, proceeding pro se, alleges that, “[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 8:08CV13, ” 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.” Compl., ECF No. 1 [hereinafter Compl.], at 3.[1] Plaintiff asserts 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 Id. at 3-4, and that without leave of court, “there [sh]ould [have been] no indictment or judgment entered against [him], ” see id. at 4. Nevertheless, Plaintiff states, the USAO-Nebraska convened a grand jury, which returned an indictment on April 22, 2009. Id. at 3. Plaintiff ultimately pleaded guilty to one count of securities fraud. See Compl., Appendix, ECF No. 1-1 [hereinafter Compl. App'x], at 44.

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

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'x at 3. Attached to the request were copies of orders issued by Judge Smith Camp on July 28, 2008, and March 24, 2009, in civil matter 8:08CV13. See Id. at 5-14. Plaintiff repeated his request in early November 2013, see Id. at 15-18, and, in September 2014, the EOUSA responded that the USAO-Nebraska had located no responsive records, Errata, ECF No. 20, Ex. C, ECF No. 20-3.

         In its first motion for summary judgment, Defendant asserted that its search had not yielded any responsive records. See Def.'s Mot. for Summ. J., ECF No. 14, Mem. in Supp., ECF No. 14-1, at 6-7. The court denied that motion because Defendant had failed to submit a supporting affidavit or declaration. Mem. Op. & Order, ECF No. 21 [hereinafter Mem. Op. II], at 3-4. Defendant's second motion for summary judgment was no more successful. Again, Defendant argued that it had conducted a search for responsive records and located none. See Def.'s Supp. Mot. for Summ. J., ECF No. 22 [hereinafter Def.'s Supp. Mot.]. The court deemed Defendant's search inadequate because Defendant had limited its search to records pertaining only to Plaintiff's civil case and had not searched his criminal case file. Mem. Op. & Order, ECF No. 35, at 6-8.

         The court now turns to Defendant's third motion for summary judgment. See Def.'s Second Supp. Mot. for Summ. J, ECF No. 36 [hereinafter Def.'s Second Supp. Mot.].

         II. DISCUSSION

         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 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) (per curiam)).

         B. The EOUSA's Searches 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) (internal quotation marks omitted). To this end, it may submit affidavits to explain the method and scope of its search. See Perry, 684 F.2d at 126. “[A] search need not be perfect, only adequate, and adequacy is ...


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